Faculty of Law Academic Year 2016-17 Exam Session [1] Positive obligations under the ECHR in the area of medical negligence LLM Paper by Kateryna Lytovka Student number : 01610264 Promoter: dr. Laurens Lavrysen
FacultyofLawAcademicYear2016-17
ExamSession[1]
PositiveobligationsundertheECHRintheareaofmedicalnegligence
LLMPaperbyKaterynaLytovka
Studentnumber:01610264
Promoter:dr.LaurensLavrysen
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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION....…………………………………………………………....2
1.1. Aims of the study……………………………………………………………....…....………..2
1.2. State of art…………………………………………………………………………………….3
1.3. Scope of the study and research question…………………………………………………….5
CHAPTER 2: GENERAL INTRODUCTION TO POSITIVE OBLIGATIONS IN THE
AREA OF MEDICAL NEGLIGENCE ………………………………………………………..7
2.1. General overview of positive obligations under ECHR. …………………………………….7
2.2. Procedural positive obligations as the Court’s traditional approach. ………………………10
2.2.1. General characteristics of procedural obligations in medical negligence…………..11
2.2.2. Right to a procedure….……………………………………………………………..15
2.2.3. Right to a remedy..………………………………………………………………….16
2.2.4. Procedural quality control..…………………………………………………………20
2.2.5. Procedural obligations in substantive provisions vs. procedural provisions………..24
2.3. Specific issues arisen from positive obligations under Articles 3 and 8……………………26
2.4. Conclusions…………………………………………………………………………………30
CHAPTER 3: EVOLUTION OF THE COURT’S APPROACH TO THE POSITIVE
OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE …………………………31
3.1. Distinction of positive obligations. An obligation to set up an adequate legal framework....31
3.2. From procedural to substantive protection. …………………………………………...……33
3.3. Implication of vulnerability concept for expanding positive obligations…………………...39
3.4. Conclusions………………………………………………………………………………….44
CHAPTER 4: GENERAL CONCLUSION…………………………………………………...46
BIBLIOGRAPHY………………………………………………………………………………49
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CHAPTER 1: INTRODUCTION
Right to life, right to human integrity, right to private life are supreme indispensable
rights, that Member States, parties to the Convention for the Protection of Human Rights and
Fundamental Freedoms and its Protocols (hereinafter – the Convention), agreed to guarantee
and protect. There is no doubt that the State is obliged to refrain from intentional killing,1 is
prohibited to commit torture, inhuman or degrading treatment or punishment in any case, and
should respect and not interfere2 in private life.
However, the question arises when it comes to the non-intentional violations of such
rights. Is the State responsible for the death occurred due to the malpractice of the doctor3, or for
medical intervention without parental consent,4 or when medical personnel fails to inform a
patient regarding risks to health?5 When will matters such as an error of judgment of a doctor or
negligent health professionals in the treatment of a particular patient amount to a breach of the
state’s positive obligations under the Convention? Will the issue of whether the doctor, who is
allegedly guilty in medical negligence, works for public or private hospital influence the
existence of the state’s positive obligations under the Convention? Will the vulnerable status of
an applicant influence the Court’s finding of the violation of positive obligations by a state: in
case the patient dies in psychiatric hospital,6 or when a detainee suffers from inappropriate
medical treatment,7 or in case of the failure by state authorities to provide necessary medical
assistance to military servicemen8?
The importance of the state’s protection of conventional rights by fulfilling positive
obligations is apparent. Though, in the specific sphere of health care, complexity of issues
associated with allegations of medical negligence influence the findings of the European Court
of Human Rights (hereinafter – the Court) of whether the states are in violation of positive
obligations.
1.1. Aims of the study
The aims of this study is to describe the positive obligations in the area of medical
negligence based on the analysis of the Court’s case law, in order to gain better understanding of
1 Except in circumstances prescribed by the Convention. 2 Except when such interference meet the requirements set in the Article 8 of the Convention. 3 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99; ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96; ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no. 71463/01; 4 ECtHR, 23 March 2010, M.A.K. and R.K. v. The United Kingdom, no. 45901/05 and 40146/06 5 ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04; ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05. 6 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08 7 ECtHR, 9 January 2014, Budanov v. Russia, no. 66583/11 8 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06
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the Court’s substantive and procedural approaches in finding state’s violations. The study will
show the evolution of the way the Court deals with medical negligence cases and the increasing
recourse to the substantive approach by the Court.
1.2. State of the art
Although it may seem that the Court has developed a substantial body of case-law in
the sphere of medical negligence, a single approach to positive obligations can not be easily
defined due to the multiplicity of the subject. The recent Chamber judgement in Lopes de Sousa
Fernandes v. Portugal case9 with the considerable departure from the established case-law,
which will be discussed hereunder10, confirms such statement.
State positive obligations in general gained limited scholarly attention, that can be
connected with the complexity of the Court’s positive obligations case law.11 Despite this,
significant input in the doctrine of the state positive obligations was made by the prominent
researchers: D. Xenos12, A. R. Mowbray13, K. Starmer14, C. Droge15, J.-F. Akandji-Kombe16 and
others. The development of the theory of positive obligations of the state has risen to a new
extent in the study of Laurens Lavrysen17. The mentioned monographs and doctoral thesis
provided the theoretical background for this study. However, the focus will be made on the
more specific area of the Court’s case law — positive obligations in the area of medical
negligence, — that will be analysed in line with the scholarly findings concerning state
obligations in the area of medical negligence in general,18 and Kamber’s analysis of procedural
9 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13 10 The explanation why Lopes de Sousa Fernandes v. Portugal case is seen as a considerable departure will be given in Section 3.2. 11 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 14. 12 D. Xenos, The Positive Obligations of the State under the European Convention on Human Rights (Abingdon, Routledge, 2012). 13 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004). 14 K. Starmer, “Positive Obligations under the Convention” in J. Lowell and J. Cooper (eds.), Understanding Human Rights Principles (Portland, Hart Publishing, 2001), 139-159. 15 Dröge, C., Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin, Springer-Verlag, 2003). 16 J.-F Akandji-Kombe, Positive obligations under the European Convention on Human Rights – A guide to the implementation of the European Convention on Human Rights (Human rights handbooks, No. 7, Strasbourg, Council of Europe, 2007). 17 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016). 18 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001); Filkins, J.A., Criminalization of Medical Negligence, in S.S. Sanbar and M.H. Firestone (eds.), Legal Medicine Seventh Edition (Philadelphia, Mosby 2007), 508.
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obligations in medical negligence under the Convention in particular.19 For now it seems that
the subject has not been widely developed by scholars with a view to describing the Court’s
approach evolving from the mere examination of state procedural obligations in the area of
medical negligence to the assessment of positive obligations of states under the substantive
limb.
1.3. Scope of the study and research question
As it was indicated in the section 1.1. the evolution of the Court’s approaches in
dealing with medical negligence cases brings along the focus of this LLM-paper. Therefore, the
notion of medical negligence will be given in order to limit the scope of the study to the
appropriate extent.
Medical negligence was defined by scholars as “an act or omission of a physician
rendered in the course of treating a patient, which is the cause in fact of harm to the patient and
which fails to meet the appropriate standard of care, but which is rendered without any
deliberate intent to harm the patient”.20 On the level of Council of Europe the fault of a doctor
was characterised as a failure “to act according to the required standard of care (a wrong
diagnosis or treatment)”21 or failure “to respect individual patients’ rights (failure to inform the
patient properly concerning the risks related to the particular treatment).”22
Following this, in the current study state positive obligations will be assessed in cases,
when the death of patient occurred as a cause of medical malpractice (Article 2), when a
patient’s sufferings were caused by negligent medical treatment, that, however, did not result in
death (Article 223 or Article 324), when patient did not receive information regarding risks to his
health (Article 825) and when medical intervention was performed without patient’s consent
(Articles 326 and 827).
This paper will focus on positive obligations in mentioned and similar situations in the
area of medical negligence without considering other health-related issues that could amount to 19 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173–190. 20 J.A Filkins, Criminalization of Medical Negligence, in S.S. Sanbar and M.H. Firestone (eds.), Legal Medicine Seventh Edition (Philadelphia, Mosby 2007), 508. 21 H. Nys, European Committee on Legal Co-Operation: Report on medical liability in Council of Europe Member States. Strasbourg, 7 March 2005, 1. 22 Ibid 23 if the applicant survived by chance, but the most likely result was death (see ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05) 24 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06 25 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05 26 Infringement of one’s physical integrity (see ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07) 27 ECtHR, 13 January 2015, Elberte v. Latvia, no. 61243/08.
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breaches of state positive obligations under the Convention — i.e. cases in which applicants
complain about the requisite level of healthcare28, or about the refusal of state authorities to
allow patients access to unauthorized drugs.29
In the recent case law, the Court seems to change the vector of implication of positive
obligations from the procedural to the substantive. This observation was crucial in shaping the
research questions of the present study. To what extent does the Court impose substantive
positive obligations in medical negligence cases? And subsequently it will be interesting to see
if the Court, when imposing substantive obligations, applies a purely substantive approach or
rather a mixed approach in which it integrates substantive arguments in its traditional
procedural approach?
Analysis of the starting point of the evolution of Court’s approaches in medical
negligence cases is therefore a necessary first phase. Thus, it is indispensable to provide an
overview of the general concept of positive obligations. Following this general introduction, the
second chapter will continue with the review and assessment of procedural positive obligations
as the Court’s traditional approach in medical negligence cases. The different aspects of
procedural guarantees of the Convention will be scrutinised.
Acknowledging the emergence of substantive obligations in this area, the question of
the notion of the substantive positive obligations of states and the distinction between them and
procedural obligations arises. Therefore, the chapter will firstly review the distinction of positive
obligations and the emergence of the state obligation to set up an adequate legal framework, and
then the evolution of the Court’s approach from procedure to substance in medical negligence
cases will be addressed.
At the end of the third chapter, the focus will be switched to the concept of
vulnerability as “deepening existing positive obligations”,30 as a result of the Court’s dynamic
interpretation of the Convention. A comprehensive analysis will be provided of different
vulnerable groups and how their specific conditions affect the Court’s finding of a state’s failure
to protect their conventional rights when medical negligence occurs. However, issues of
expulsion of ill people and discrimination on the grounds of health fall outside the scope of this
study.
The LLM-paper will draw to a close by setting out the findings of the paper with regard
to the evolution of the Court’s approach to the assessment of state positive obligations in the
area of medical negligence.
28 ECtHR (inadm.), 4 January 2005, no. 14462/03; 29 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12 30 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013). 212
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CHAPTER 2: GENERAL INTRODUCTION TO POSITIVE OBLIGATIONS IN THE
AREA OF MEDICAL NEGLIGENCE
2.1. General overview of positive obligations under the ECHR
To begin, it is worthy mentioning, that positive obligations rarely derive from the
express wording of the Convention, but are developed by the Court in its case law. The doctrine
of implied positive obligations was first debated almost 50 years ago in the Belgian Linguistics
case, that concerned the right to education. Although, Judge Terje Wold disputed in his dissent
that it was not justified by the wording of the Convention “[to] insert into Article 2, first
sentence (P1-2), a positive obligation”31, the majority were of the opposite opinion.
Subsequently, the decisive development of positive obligations came with future cases (Marckx
v. Belgium and Airey v. Ireland), enabling the Court to find a violation of conventional human
rights in a way that was inconceivable according to the classical liberal model.32
Article 2 is an example of a Convention provision of which the express wording allows
positive obligations to be derived: “everyone’s right to life shall be protected by law”. It is clear
that Article 2 places a positive obligation on states to protect the right to life by legislative
means. An opposite example is Article 3, that does not directly establish any positive
obligations. However, within years the Court has gradually supplemented the relatively
minimalist wording of Articles 2 and 3 of the Convention with a wide, and increasing, range of
implied positive obligations, by establishing and subsequently reaffirming them in case law. 33
Thus, states have been found by the Court in breach of duty to prevent ill-treatment of
persons under state surveillance, including harm caused by non-state actors; failing to carry out
an effective investigation into incidents of death or ill-treatment; failing to provide a proper
redress and other violations of positive obligations (will be discussed in more details in Section
2.2. and 3.1). In other words, states were found failing to take the range of measures, such as:
legislative, regulatory, preventive, investigative and punitive.34
Although as it was said the Court developed a wide range of implied positive
obligations, the Court’s case law does not provide a clear definition of the concept of positive
obligations. However, Judge Martens in his dissenting opinion in Gül v. Switzerland
31 ECtHR (Plenary), 23 July 1968, Belgian Linguistic, nos. 1474/62 32 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 3. 33 Ph. Leach, Positive Obligations from Strasbourg: Where Do the Boundaries Lie? 15 Interights Bulletin (2006), 123 at 124. 34 Ibid
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characterised them as “requiring member states to … take action”35. This at first sight simple
definition resembles the most important element of the numerous positive obligations placed
upon the states — the duty to undertake specific affirmative tasks.36
In Rees v. the United Kingdom the Court has held that with regard to the diversity of
situations, the scope of obligations will “inevitably vary”.37 The logical question then arises:
how does the Court determine whether the state has positive obligations and what is the content
and scope of such obligations?
The general legal grounds for the existence of positive obligations can be found in the
Convention. K. Starmer defined three inter-related principles: l) the requirement under Article l
of the Convention that states should secure conventional rights to all persons within their
jurisdiction; 2) the general principle of the effectiveness of rights guaranteed by the Convention
(Airey v. Ireland); 3) the supplementing obligation under Article 13 to provide an effective
remedy.38
It should be noted that the Court acknowledges that the determined obligations should
not impose an impossible or disproportionate burden on the authorities.39 However, the Court
often interprets conventional rights as implying state positive obligations, that in the Court’s
view are derived from the general duty of states to secure respect for human rights under Article
1 of the Convention.
In order to determine the content and the scope of positive obligations the principles of
knowledge, proximity and effectiveness play an important role.40 Thus, under the knowledge
condition, the State can only be found responsible if the risk of harm was foreseeable.41
According to the proximity principle, only state’s omissions that have knowingly contributed to
the harm suffered by the victim lead to state’s responsibility, thus linking an alleged failure of a
state to comply with a positive obligation to a particular harm.42 The principle of effectiveness,
further used as a “general interpretative principle” under the Convention, was established in the
case Airey v. Ireland, where the Court held that “[t]he Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical and effective.”43 Although the
Court does not explicitly indicate which measures the State should take in order to comply with
35 ECtHR, 19 February 1996, Gül v. Switzerland, no. 23218/94 36 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004), 189. 37 Rees v. the United Kingdom, 17 October 1986, ECHR, App. no. 9532/81, para. 37 38 K. Starmer, European human rights law (London : Legal Action Group, 1999), 753 39 Osman v. the United Kingdom, 28 October 1998, ECHR, App. no. 23452/94, para.116 40 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016). 41 Ibid, 128 42 Ibid, 136 43 Ibid, 137, citing ECtHR, 9 October 1979, Airey v. Ireland, no. 6289/73, § 24
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its positive obligations, such measures should be appropriate and sufficient in order to enable
effective enjoyment of the Convention rights.44
Moreover, the Court while contesting the existence of positive obligations in each case,
makes assessments of the competing balance of rights and a consideration of the fairness of the
imposition of burdens on the state.45 Such assessment differs from case to case and evolves with
a time, as the Convention is considered as a living instrument.46
As the study is devoted to positive obligations in a particular sphere, continuing with
deeper analysis of general tests and principles applied to positive obligations would go beyond
the scope of this study. Some important issues concerning the content of positive obligations in
the area of medical negligence will be discussed in the following chapters.
For comprehensive analysis of duties of states in case of medical negligence, a
typology of positive obligations will be provided. On the basis of the Court’s positive
obligations case law, scholars have developed different categorizations of positive obligations.
C. Droge presents “horizontal” — the protection of human rights between private parties — and
“social” — obligations that enable the effective enjoyment of human rights in social reality (i.e.
rights to legislative action) — dimension.47
L. Lavrysen points out that it is better to distinguish between horizontal and vertical
positive obligations on one side and, what C. Droge calls “rights to legislative action” and
positive obligations of a more ad hoc nature on another side.48 He further stresses on the
distinction between vertical and horizontal scenario, in order to accurately evaluate the
responsibility of the state. Thus, the difference lays between the situations when a violation
directly occurs as a result of the state’s inaction (vertical scenario) and when violation occurs as
a result of the action of third parties (horizontal scenario), meaning indirect state’s failure to
protect human rights.49
However, the mere fact that a third party has breached conventional rights cannot lead
to a finding against the state.50 The state will be held liable if it failed, legally or materially, to
prevent the violation of the right committed by a private party. For example, a violation on the
44 ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07, § 154 45 Leach, Ph., Positive Obligations from Strasbourg: Where Do the Boundaries Lie? 15 Interights Bulletin (2006), 123 at 123. 46 ECtHR, 25 April 1978, Tyrer v. The United Kingdom, no. 5856/72 47 C.Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin, Springer-Verlag, 2003), 382. 48 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 74 49 Ibid 50 J.-F Akandji-Kombe, Positive obligations under the European Convention on Human Rights – A guide to the implementation of the European Convention on Human Rights (Human rights handbooks, No. 7, Strasbourg, Council of Europe, 2007), 14
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part of a state will be found in case of the failure to provide an adequate legal framework to
secure rights, or to set up effective judicial system, “amounting sometimes to an absence of
legal intervention”51, or the absence of an effective intervention.
As it was mentioned above, it is not clear from the Court’s case law whether there is a
definite classification of positive obligations.52 However, the Court in its reasoning regularly
distinguished between two types of positive obligations: substantive and procedural ones.53 The
study will further focus on this particular classification while analysing the procedural and
substantive obligation from the perspective of medical negligence case law.
2.2. Procedural positive obligations as the Court’s traditional approach
There are two distinct aspects to the States’ human rights responsibility in case of
medical malpractice.54 The first one is, when the state fails to regulate the health profession and
health care, that is the substantive aspect of positive obligations, and the second one — in case
the state fails to provide effective procedural measures by which those responsible may be
identified and held accountable — the procedural aspect.55
The medical negligence undoubtedly affects human rights. In most cases the violation
of Convention rights found by the Court were directly connected with the the state’s failure to
provide an adequate procedural response to occurred medical malpractice.56 In this chapter the
focus will lie on the procedural aspect of state’s positive obligations, as the Court’s traditional
approach to assess whether the State has complied with its human rights obligations in the area
of medical negligence.
2.2.1. General characteristics of procedural obligations in the area of medical
negligence
51 Ibid, 15 52 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 43 53 Ibid, with reference to V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation, Lund University, 2015), 449. 54 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 175 55 Ibid 56 ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no. 71463/01
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Generally, the Court, in its case law, has strengthened the guarantees for the protection
of human rights set in substantial conventional provisions by adding a “procedural layer”.57
From the majority of substantive rights, the Court derives procedural obligations, differing in
the degree and consistency.58 Such procedural obligations vary in nature and could be applied ex
ante — the procedure leading to the decision that breached the right (i.e. the procedure leading
to the individual decision allegedly breaching the Convention; adoption of the normative
framework regulating issues that gave rise to an alleged violation)— as well as ex post facto —
the procedure that follows the violation occurred (i.e. investigation, remedies).59 Examples of ex
ante and ex post facto procedural obligations arisen in the area of medical negligence will be
provided hereunder.
The Court developed the procedural obligation in medical negligence cases “by
implication”60 from the requirement set in Article 2 of the Convention to protect everyone’s life
by the means of law, and the general duty of the state to secure respect for human rights under
Article 1 of the Convention.61 The Court emphasises on the fundamental importance of the first
sentence of Article 2, which enshrines one of “the basic values of the democratic societies
making up the Council of Europe”, and declares that Article 2 enjoins the State not only to
refrain from the intentional taking of life, but also to take appropriate steps to safeguard the lives
of those within its jurisdiction.62
In early cases arisen from medical negligence63 the Court did not assess positive
obligations separately from the procedural and the substantive limb, as it appears in later
judgements.64 In the 1999 case of Erikson v. Italy65 concerning the death of the applicant’s
mother after prescribed X-rays by the public care doctor, the Court stated that positive
obligations to protect life include two elements:
1) the requirement for hospitals to have regulations for the protection of their
patients' lives;
57 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 138. 58 Ibid. 59 Ibid. 60 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 298 61 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 177 62 ECtHR (inadm.), 27 November 2007, Rajkovska v. Poland, no. 37393/02 63 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97., ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/9 64 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09 65 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97.
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2) the obligation to set up an effective judicial system for:
• establishing the cause of a death which occurs in hospital;
• establishing any liability on the part of the medical practitioners concerned.
In later cases, the Court examined separately procedural and substantive positive
obligations, and the Court stressed that finding a procedural breach did not depend on whether
the substantive part was violated.66 The evolution of the Court’s approach and the distinction
between positive obligations will be discussed in more detail in Chapter 3.
Already in 1999 in the abovementioned judgement, the Court emphasised the
importance of an effective investigation or scrutiny of the events that led to the death of the
patient, and, not less significant, the importance of the disclosure of the facts to the public and in
particular to the relatives of a victim. The Court defined its task as to review whether and to
what extent the national judicial bodies have carried out the careful scrutiny required by Article
2 in order “to maintain the deterrent effect of the judicial system in place and ensure that
violations of the right to life are examined and redressed”.67 The requirements for the effective
investigation set by the Court in the case law on medical malpractice will be described in
following chapters.
The duty to carry out an effective investigation, in order to establish the cause of death
of the patient and to hold those liable accountable, are ex post facto procedural obligations. The
state fails to adopt the measures after the death as a result of the medical negligence already
occurred. However, not less important are obligations preceding the lethal outcome — ex ante
procedural obligations.
The aim of ex ante obligations is the prevention of violations. For instance, through
obliging the state to react appropriately to credible allegations of breach of human rights.68 Or
the positive procedural obligation to monitor activities of a public importance undertaken by
private actors, in which human rights are likely to be affected,69 as in Öneryildiz v. Turkey, the
case about the death of thirty-nine people as a result of a methane explosion at a rubbish tip,
where the Court established state obligation to monitor dangerous activities.70 In this regard, the
interesting question arises whether states are under obligation to monitor activities in the sphere
66 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13 67 ECtHR (Grand Chamber), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 133; ECtHR (Grand Chamber), 30 November 2004, Öneryildiz v. Turkey, no. 48939/99, § 96. 68 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 139. 69 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 83 70 ECtHR (Grand Chamber), 30 November 2004, Öneryildiz v. Turkey, no. 48939/99, § 90.
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of health care? According to Lavrysen, contrary to Öneryildiz, in other cases concerning
activities of public importance the Court took another route.71 He refers to the De Hert’s concept
of “system responsibility”, where the State is obliged within its legal system to ensure an
efficient distribution of responsibilities in such a way, that private actors can be held
accountable for human rights violations.72 In cases in the area of medical malpractice, the
positive obligation to organise the legal system in such a way as to protect the rights of patients
was imposed on states by the Court: “…positive obligations therefore require States to make
regulations compelling hospitals, whether public or private, to adopt appropriate measures for
the protection of their patients' lives”.73 In subsequent cases the Court upheld this line of
reasoning.74 The question should such positive obligation be addressed under procedural or
rather substantive limb will be examined more extensively in Chapter 3.
So, it seems that, if the obligation to put in place the legal system in the sphere of a
healthcare is fulfilled, state monitoring of medical practice is not required. However, some
authors are of the opinion that in certain circumstances the absence of such a control can lead to
finding a state liable for violation of Article 2.75 For example, according to Harpwood, in the
absence of a proper system of supervision of vaccination scheme or of a public health protection
programme, the state can be found contravening the Convention.76 In Association X v UK,
concerning children suffering from severe brain damage after vaccination, the parents
complained that a state vaccination scheme was inefficiently administered and could even lead
to death, in violation of Article 2.77 Here, however, the Commission was persuaded by the
evidence of the UK Government, that the scheme was properly controlled and administered:
“sufficient to comply with its [State] obligation to protect life under Article 2 of the
Convention”.78 Still the case confirms that the absence of an appropriate system of control can
sometimes amount to finding states liable for negligence in managing their health care systems
under Article 2.
71 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 85 72 Ibid, with reference to De Hert, P., Systeemverantwoordelijkheid voor de informatiemaatschappij als positieve mensenrechtenverplichting, in D. Broeders, C. Cuijpers and C. Prins (eds.), De staat van informatie (Amsterdam University Press, 2011), 33. 73 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96 § 49 74 Ibid 75 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 200 76 Ibid 77 ECtHR (inadm.), 12 July 1978, Association X. v. The United Kingdom, no. 7154/75 78 Ibid
13
Going back to the concept of “system responsibility”79, the logical question arises,
whether the distribution of responsibilities should be also applied to the public hospitals? Is the
state more likely to be found liable, if the medical negligence was committed by the public
doctor? It is apparent that public authorities (including employees) are obliged to act in
accordance with the Convention rights.80 However, as it appears from the case law, the type of
ownership of the hospital does not influence the Court’s assessment of the state’s responsibility.
The Court emphasises in its judgements that regulations concerning health care should be set up
requiring hospitals “be they private or public” to take measures to ensure the protection of
patients’ lives.81 The same principle applies to the requirement to set up an effective
independent judicial system in order to determine the cause of the death of a patient “under the
responsibility of health professionals… whether they are working in the public sector or
employed in the private structures”, and to make those responsible accountable.82
However, the slight departure from the established position can be seen in the Court’s
recent Chamber judgement Lopes de Sousa Fernandes v. Portugal case. The Court, while
examining the patient’s right to be duly informed about the foreseeable risk in advance by
doctors under the procedural limb of Article 2, expressed the opinion, that “if those doctors
work in a public hospital, the State Party concerned may be directly liable for this lack of
information”.83 The case was referred to the Grand Chamber, so soon it will be clear what the
Court’s final position is on whether the state should be found liable for mere medical
negligence, and whether it is decisive that the negligence occurred in a public hospital.
To sum, the Court interprets state positive procedural obligations in the area of medical
negligence as follows:
“… in the sphere of medical negligence the procedural obligation under
Article 2 has been interpreted by the Court as imposing an obligation on the State to
set up an effective judicial system for establishing both the cause of death of an
79 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 86, with reference to De Hert, P., Systeemverantwoordelijkheid voor de informatiemaatschappij als positieve mensenrechtenverplichting” in D. Broeders, C. Cuijpers and C. Prins (eds.), De staat van informatie (Amsterdam University Press, 2011) 80 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 197 81 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 107 82 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 81; ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96, § 49 83 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, §143
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individual under the care and responsibility of health professionals and any
responsibility on the part of the latter.”84
2.2.2. Right to a procedure
Following the general introduction to state’s procedural obligations in the area of
medical negligence, the requirements set by the Court in order to comply with such obligations
will be examined. The assessment will be given in accordance with the Brems’ categorization
on85:
1) requirements for the procedure to be available — the right to a procedure;
2) more specific requirements concerning guarantees that have to be included in
procedures — procedural quality control.
State obligations arising from procedural provisions of the Convention will be
discussed separately.
In general terms it could be said that the Court, instead of interpreting the Convention
provisions in such a way as to explicitly establish a new substantive right, has developed the
right to a procedure in order to ensure the enjoyment of rights guaranteed by domestic law.86 In
many cases the Court has found that, while the right is already substantively protected under the
national law, it can nonetheless not be enjoyed due to the lack of effective procedures.87
According to Brems, the right to a procedure, that applies to the ex post procedures, is
arguably the most important procedural right and includes:
1) right to an investigation into alleged violations;
2) right to a remedy.88
The effective official investigation is required “by implication”89 from states under the
obligation to protect the right to life enshrined in Article 290, read in conjunction with the State's
general duty under Article 1. However, the Court stresses that the obligation to conduct an
effective investigation “is not an obligation of result, but of means”91. The state is under the
obligation to take “whatever reasonable steps they can to secure the evidence concerning the
84 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 125 85 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 140 86 Ibid, 137 at 147 87 Ibid 88 Ibid, 137 at 140 89 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 298 90 Similar principles apply under Article 3 ECHR (ECtHR (Grand Chamber), 13 December 2012, El-Masri v. FYROM, no. 39630/09, § 182). 91 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 298
15
incident”92. The already mentioned case Erikson v. Italy, which was declared inadmissible by
the Court, can serve as a good example. The Court upheld the Government’s position that the
judicial authorities carried out a thorough investigation into the events, and consequently there
was no “failure by the respondent State to comply with the positive obligations, including any
procedural requirements, imposed by Article 2 of the Convention”. However, the investigation
did not lead to the establishment of the cause of death and no one was held responsible for the
death of an old woman as a result of prescribed X-rays, that turned to be lethal for her.
The requirements set by the Court in order for states to comply with the obligation to
conduct an effective investigation will be discussed under the procedural quality control section.
2.2.3. Right to a remedy
The procedural obligations under substantive provisions have been interpreted by the
Court in such a way as to cover the issues of how the applicants should be involved in the
proceeding, and the question of the compensation.93 The Court has repeatedly recognized a
procedural obligation to provide access to remedies:
“the concepts of lawfulness and the rule of law in a democratic society command that
measures affecting fundamental human rights be, in certain cases, subject to some form of
procedure before an independent body competent to review the reasons for the measures and
the relevant evidence […]. In ascertaining whether this condition has been satisfied, a
comprehensive view must be taken of the applicable procedures.”94
The effective judicial system required by the procedural limb of Article 2 must under
certain circumstances include the recourse to the criminal law, because of the fundamental
character and the importance of the right to life. However, due to the unintentional nature of the
infringement of the right to life as a result of the medical error, a criminal investigation is
typically not required.95 The Court stated long ago in Erikson decision, that the Convention
should not be interpreted as guaranteeing “a right to secure a conviction in criminal
proceedings”, and indicated the probability to obtain a better result for the applicant, had the
latter used civil proceedings to accuse a doctor in negligence.96 This wording evolved in the
fundamental principle from the case Calvelli and Ciglio v. Italy that has subsequently been used
in the majority of cases arisen from medical negligence: 92 Ibid 93 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 157 94 ECtHR, 20 March 2007, Tysiąc v. Poland, no. 5410/03, § 117; the same principles are enshrined in ECtHR, 2 September 2010, Kaushal and others v. Bulgaria, no. 1537/08, § 29 95 ECtHR (GC), 17 January 2002, Calvelli and Cigli o v. Italy, no. 32967/96, § 51 96 ECtHR (inadm.), 26 October 1999, Vo v. France, no. 53924/00
16
“…if the infringement of the right to life or to personal integrity is not caused
intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system
does not necessarily require the provision of a criminal-law remedy in every case. In the
specific sphere of medical negligence the obligation may for instance also be satisfied if the
legal system affords victims a remedy in the civil courts, either alone or in conjunction with a
remedy in the criminal courts, enabling any liability of the doctors concerned to be established
and any appropriate civil redress, such as an order for damages and for the publication of the
decision, to be obtained. Disciplinary measures may also be envisaged.”97
In the present case, that concerned the death of the applicants’ baby shortly after birth,
the parents claimed violation of Article 2 as “no criminal penalty was imposed on the doctor
found liable for the death of their child in the criminal proceedings”.98 The Court found that
Italy had complied with the positive obligations, as its legal system ensured the access to a
remedy for the injured party including both mandatory criminal proceedings and the possibility
to bring a claim in the civil court.99 The applicants had recourse to the both proceedings. In the
course of civil proceeding the applicants had made a settlement with the doctor’s and the
clinic’s insurers.100 With regard to this, the Court came to the conclusion, that, in doing so, “the
applicants denied themselves access to the best means… of elucidating the extent of the doctor's
responsibility for the death of their child”.101
The Calvelli case cannot be regarded as a radical departure from the Court’s prior case
law, as the similar conclusions had been already made in Powell:
“…where a relative of a deceased person accepts compensation in settlement of a civil
claim based on medical negligence he or she is in principle no longer able to claim to be a
victim in respect of the circumstances surrounding the treatment administered to the deceased
person or with regard to the investigation carried out into his or her death.”102
So, in case the applicant used a possibility to have recourse to the civil proceedings and
obtained compensation, the position of the Court is clear with respect to the right of the
applicants to resort to criminal proceedings. However, the question arises, what will be the
response of the Court on the admissibility of an application, if the applicant initiated only
criminal proceedings, and intentionally did not bring a claim to the civil court?103 Will the
Calvelli principle influence the Court’s ruling on the exhaustion of the domestic remedies?
97 ECtHR (GC), 17 January 2002, Calvelli and Cigli o v. Italy, no. 32967/96, § 51 98 Ibid, § 52 99 Ibid, § 53 100 Ibid, § 54 101 Ibid, § 55 102 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/9 103 If in the imaginary situation the applicant seeks the justice over the negligent doctor, not the compensation
17
After the analysis of the Court’s case law, it would be wrong to conclude that the kind
of remedy pursued by the applicant is the decisive factor. The Courts position is that the person
is free to choose any remedy that “addresses his or her essential grievance”104. The Court held in
Šilih v. Slovenia that the state’s obligation inherent in Article 2 includes the obligation “to
provide for the possibility of bringing civil or criminal proceedings as may be appropriate to the
case”.105 The most important for the Court is to review whether the remedy was effective in
practice. In this case, the Court rejected the Government’s argument on the non-exhaustion of
domestic remedies. The Government claimed that the applicants had a possibility to lodge a
disciplinary complaint and that the civil proceedings were still pending. However, the Court
found such remedies ineffective in the circumstances of the case.106
The element of the “effectiveness” seems to be central in examining the issue of the
exhaustion of domestic remedies.107 In cases, when the applicant instituted only criminal
proceedings and the government argues on non exhaustion of domestic remedies, as the the
applicant did not attempt to regulate the dispute by means of civil proceedings, the Court
examines whether such proceedings would have resulted in a more effective examination of the
case.108 For example, in Eugenia Lazăr v. Romania, the Court expressed doubts that, if the
applicant had brought a civil claim, after unsuccessful criminal and disciplinary proceedings, it
would have been effective under the circumstances.109
To conclude, if another remedy has in essence the same objective but would not
necessarily lead to a more effective examination of the case, the use of such remedy is not
required.110 It is an essential finding with respect to the right to a remedy in cases arisen from
medical negligence, as the Court recognises, that the three avenues (criminal, civil and
administrative) are cumulative with regard to the exhaustion of domestic remedies and
examination of the merits of the states’ procedural obligation.111
Kamber indicates on “a potential flaw” in the Court’s manner of examining procedural
obligations in medical negligence cases may arise due to the absence of a single Court’s
104 ECtHR, 13 November 2012, Bajić v. Croatia, no. 41108/10, § 74 105 ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no. 71463/01, § 154 106 Ibid § 168 - 170 107 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 183 108 Ibid 109 ECtHR, 16 February 2010, Eugenia Lazar v. Romania, no. 32146/05, § 72,86–92. 110 ECtHR, 13 November 2012, Bajić v. Croatia, no. 41108/10, § 79 111 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 183
18
approach on whether the different types of medical errors call for different types of
accountability.112 As example the author refers to the cases against Slovakia concerning
involuntary sterilisation of Roma women113, where the Court, in accordance with the Calvelli
principle, held that both criminal and civil remedies could satisfy the procedural obligation
under the Convention.114 Kamber does not agree with the Court’s conclusion, as in his opinion,
the involuntary sterilisation could be regarded “as a deliberate deviation from the safe process
(error – violation) in terms of medical law”, and thus cannot be measured as other types of the
medical errors from other cases, that are referred to by the Court in these judgments:
“recklessness in assessing the medical history of a patient” (Calvelli and Ciglio v. Italy),
“negligence in the technical process of admitting a patient to the hospital” (Vo v. France ), or a
“possible mistake in assessing the appropriate form of medical treatment” (Byrzykowski
v.Poland ), which may be characterised as unintentional technical medical errors.115
Generally, the Court’s position is that remedies must correspond to the specificities of
the threat to the rights guaranteed by the Convention.116. Thus, in some cases the Court takes
another route away from the Calvelli principles, and states that in case of “gross medical
negligence” the state authorities were responsible “to act promptly and of their own motion” 117
in order to institute criminal proceedings.118
Another interesting case in this regard is Mehmet Senturk and Bekir Senturk v. Turkey,
the case concerned the death of the applicants’ wife and mother due to the pregnancy
compilations after the errors of judgements made by health professionals and after she was
denied treatment on account of her inability to pay the hospital fees in advance.119 Although the
Court leaves a wide discretion to the states for the classification of the alleged offences120, it
comes to the conclusion that in these circumstances “the negligence attributable to that
hospital’s medical staff went beyond a mere error or medical negligence, in so far as the
doctors working there, in full awareness of the facts and in breach of their professional
obligations, did not take all the emergency measures necessary to attempt to keep their patient
112 Ibid 113 ECtHR 8 November 2011, V.C. v. Slovakia, no. 18968/07, § 125; ECtHR, 12 June 2012, N.B. v. Slovakia, no. 29518/10, § 84; and ECtHR 13 November 2012, I.G. and Others v. Slovakia, no. 15966/04 § 129. 114 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 183-4 115 Ibid 116 ECtHR, 20 March 2007, Tysiąc v. Poland, no. 5410/03, § 117 117 ECtHR, 17 December 2009, Denis Vasilyev v Russia, no. 32704/04, § 153. 118 Ibid, § 154 119 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 90 120 Ibid, § 86
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alive.”121 This reasoning led to the Court’s decision that, notwithstanding the fact that the
applicants’ recourse to other remedies on their own initiative, the failure of the state to charge
those liable with a criminal offence or to prosecute them was in breach of Article 2.122
In cases concerning medical malpractice in the prison, the Court’s approach to the
states positive obligations concerning the accountability also differs. The cases in the area of
medical negligence towards prisoners and other vulnerable groups will be discussed in Chapter
3.
2.2.4. Procedural quality control
The Court thoroughly examine the procedural aspects of state obligations in order to
reach solutions that are just and fair, which is the main aim of any human rights adjudicating
body including the Court.123
In the area of medical negligence, the Court imposed on states the positive obligations
to set up an effective judicial system in order to determine the cause of death of an individual
under the care of health professionals and to hold accountable those at fault. The Court
emphasises that such obligations to guarantee the protection of patient’s rights in domestic law
“should not just exist in theory”.124 For this reason the Court has not only established the right
to access to a procedure, but has also developed procedural requirements that regulate these
procedures.125
When assessing the procedural aspect of positive obligations, the Court examines
whether the investigation conducted by the authorities met the requirements of “promptness,
effectiveness and reasonable diligence”.126
Concerning the first requirement, the Court held that the protective mechanisms must
“operate effectively in practice within a time-span such that the courts can complete their
examination of the merits of each individual case”.127 Frequently in cases arisen from medical
negligence the applicants complain about the length of the proceedings. The Court stresses that,
in the event of serious injury or death, states must have put in place an effective independent
judicial system capable of promptly establishing the facts and to hold accountable those
121 Ibid, § 104 122 Ibid, § 105 123 E. Brems, and L. Lavrysen, “Procedural Justice in Human Rights Adjudication: the European Court of Human Rights” 35 Human Rights Quarterly (2013), 176 at 182 124 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 125 125 V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation , Lund University, 2015), 535. 126 ECtHR, 16 February 2010, Eugenia Lazar v. Romania, no. 32146/05, § 72; ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 99; 127 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96, § 53; ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 196
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responsible and to grant an appropriate redress to the victim.128 A prompt response by the state
is deemed by the Court to be immensely important both in “maintaining public confidence in
their [authorities] adherence to the rule of law” and also “in preventing any appearance of
collusion in or tolerance of unlawful acts”.129
The importance of such prompt examination of compliance with the procedural
requirements by the state, in the medical sphere in particular, is connected not only with
compliance with ex post state obligations, but also with “the safety of users of all health
services”130 and thus with compliance with ex ante state obligations. As the knowledge of
possible medical errors obtained in the course of effective and prompt investigation will
contribute “to remedy the potential deficiencies and prevent similar errors”131. In rare cases132,
the Court can accept a justification for the length of the proceedings and therefore the
ineffectiveness of the investigation because of the complexity of the case or by referring to the
conduct of an applicant and the relevant authorities.133
Except for the length of the domestic proceedings, the Court also scrutinises the
decision-making process. The Court admitted that the requirements of a fair decision-making
process differ from case to case, depending on the nature of the decision under examination.134
Although it is therefore hard to identify the content of such procedural decision making
requirements, some of them the Court frequently applies in particular contexts.135
In medical negligence cases the Court regularly mentions such procedural decision
making requirements, as: the participation, the examination by the authorities of expert medical
reports and the problem of impartiality of medical experts.
Concerning the first criteria, when medical negligence occurs, the participation of the
victim is recognised as essential element of the fair procedure. Being that, the participation of
the interested person is a guarantee that his/her interests are taken into account136. In the
decision-making process, the Court finds it vital that the informed consent of the patient is
128 ECtHR (Grand Chamber), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v . Romania, no. 47848/08, § 132 129 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 101 130 ECtHR, 27 June 2006, Byrzykowski v . Poland, no. 11562/05, § 117. 131 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 125 132 I.e. ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97. 133 ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05, § 85 134 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 71 135 Ibid 136 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 150
21
obtained.137 The Court considers the absence of informed consent as a violation of Article 8, as a
result of a failure of a state to adopt the necessary regulatory measures obliging doctors to
inform patient about foreseeable consequences of a planned medical intervention on his/her
physical integrity in such a way that patient are able to give consent. If a doctor failed to obtain
informed consent prior the medical procedure, which turned to be fatal for the patient, the Court
in particular circumstances can find a state in violation of Article 2.138 The performance of a
medical intervention without duly informed consent resulting in lasting suffering of the
applicant can amount to violation of Article 3.139 Positive state duties arisen from Article 3 and
Article 8, in cases in the area of medical malpractice, will be discussed in Section 2.3.
The participation criteria can also be related to the ex post procedures. For the
investigation to be effective, in the Court’s view, it must be accessible to the family of the
victim to the extent necessary to protect their legitimate interests.140 The Court also requires
there to be a sufficient element of public scrutiny of the investigation, varying in degree
depending on the circumstances of the case.141 Such position of the Court reflects the Tyler’s
idea of the procedural justice principles,142 in particular the participation principle: “[C]itizens
must also infer that [their views are] being considered by the decision maker”.143
In the cases concerning medical negligence, the Court, while examining the procedural
violation of the Article 2 by the state, expressed the opinion that, due to the complications of the
investigation conducted, “the applicant was entitled to feel that she had not been informed as to
the cause of her husband’s death”.144 So the investigation, in particular the outcome, was not
accessible to the victim’s family, contrary to the principles of an effective investigation,
established by the Court in Giuliani and Gaggio v. Italy.
While verifying whether the medical decision-making was fair, the Court does not
assess the evidence. The Court emphasised that the assessment of evidence is a matter for the
domestic authorities (unless the Court finds that the prosecuting authorities arbitrarily assessed
137 Ibid, 137 at 151, with the reference to cases: ECtHR, 8 November 2011, V.C. v. Slovakia, no. 189 68/07, § 112 (under Article 3); ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05, § 42 (under Article 8) 138 As in Altug and Others v. Turkey (ECtH, 30 June 2015, no. 32086/07, § 83) the Court found violation of Article 2 due to the failure of state authorities to ensure appropriate implementation of the relevant legislative framework on protection of patients’ right to life, as neither medical experts, nor the Turkish courts had addressed the possibility that the medical team had infringed the domestic law. 139 ECtHR, 8 November 2011, V.C. v. Slovakia, no. 189 68/07, § 112 140 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 303 141 Ibid 142 E. Brems, and L. Lavrysen, “Procedural Justice in Human Rights Adjudication: the European Court of Human Rights” 35 Human Rights Quarterly (2013), 176 at 180, with reference to Tom R. Tyler, Procedural Justice and the Courts, 44 Ct. Rev. 26, 30 (2007–2008). 143 Ibid, 176 at 181. With reference to Tom R. Tyler, Why People Obey the Law 8 (2006). 144 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 142
22
the evidence).145 Consequently, the Court reviews not the expert medical reports themselves, but
whether their examination by the authorities was fair and just.
In the case of Bajić v. Croatia, the experts, who concluded the medical reports in the
criminal proceedings against a physician allegedly liable for the death of a patient, were at the
same time employed as professors at the same faculty as the accused physician.146 The Court,
referring to the crucial weight of medical expert reports as evidence in medical negligence cases,
emphasised the need to ensure “the independence of the findings of the experts involved”, who
“must have formal and de facto independence from those implicated in the events.”147
The Court also establishes the requirements necessary in order to comply with the
state’s obligation to guarantee the right to a remedy. As it has been already discussed, the Court
considers that the possibility of obtaining civil redress in cases arisen from medical negligence,
afforded by the domestic legal system, is enough to comply with positive procedural obligations
by states.148 In line with Calvelli principles, in Šilih v. Slovenia, the Grand Chamber clarifies
that the legal system should guarantee the possibility for any appropriate civil redress, “such as
an order for damages and/or for the publication of the decision”, to be obtained.149 In the
subsequent judgements the Court makes a step further and states that the crucial question is
whether the redress in question is sufficient and appropriate in order to satisfy the positive
obligation under Article 2.150 In Oyal v. Turkey, the case about a child contaminated by HIV
when given blood transfusions immediately after his birth, the Court came to the conclusion that
“the redress offered to the applicants was far from satisfactory for the purposes of the positive
obligation under Article 2”, as the applicant received such a small non-pecuniary damage award
that only covered one year's treatment and medication.151
2.2.5. Procedural obligations in substantive provisions vs. procedural provisions
As has already been mentioned, that state's obligation to carry out an effective
investigation and to provide the applicants with the appropriate civil or criminal redress,
depending on the circumstances, has in the Court's case-law been considered as an obligation
inherent in Article 2, which requires the right to life to be “protected by law”.152 Moreover, the
145 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97. 146 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 184-5 147 ECtHR, 13 November 2012, Bajić v Croatia, no. 41108/10, § 95. 148 See section 2.2.3. Right to a remedy. 149 ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no. 71463/01, § 194 150 ECtHR, 23 March 2010, Oya l v. Turkey, no. 4864/05, § 70 151 Ibid, §§ 71-72 152 ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no. 71463/01, § 154
23
Court states that, even if the failure of states to comply with such an obligation influences the
right protected under Article 13, “the procedural obligation of Article 2 is seen as a distinct
obligation”.153
The Convention includes certain explicit procedural obligations. The most important
ones, due to their broad scope of application, are deemed to be enshrined in the right to a fair
trial (Article 6) and the right to an effective remedy against violations of Convention rights
(Article 13).154
The question why the Court focuses more on the review of the procedural obligations
arisen from substantial norms instead of conventional explicit procedural provisions, was
examined by Brems. In her opinion, the main motive of the Court to develop the procedural
rights and obligations, is to strengthen the protection of the substantive right.155 The procedural
obligations are distinct, meaning that they “can give rise to a finding of a separate and
independent interference”156 and regardless of whether states were ultimately found to be
responsible for the substantive violation. Consequently, the procedural failures may be the only
basis for the Court to hold a state liable for breach of the substantive rights. The procedural
obligations in the substantive guarantees are, according to Brems, instrumental, meaning that the
identification of their nature and scope aims to the improvement of substantive rights.157 As it
was explored in the previous Section, certain procedures are vital (and this is the reason why the
Court set the procedural requirements) in order to prevent or to remedy violations of substantive
rights. Contrary to this, the procedural provisions aim to protect against procedural harm
itself.158
Under certain circumstances the Court examines the procedure both from the viewpoint
of the substantive guarantees and from the viewpoint of procedural provisions, such as Article
13 in combination with the relevant substantive provision and Article 6 of the Convention,
considering them as “complimentary”.159 However, in some cases, it seems that they are
153 Ibid 154 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 52 155 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 159 156 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 299 157 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 159 158 Ibid 159 Ibid
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“interchangeable”.160 Brems comes to the conclusion, that the Court intends to cover various
types of harm “from each angle”.161 Generally, under the substantive provisions (Article 2 and
Article 3) the Court examines whether the state authorities met the requirements set for the
effective investigation, whether the cause of death was established and the perpetrator was held
accountable (not forgetting that the obligation to investigate is an obligation ofmeans, but not of
result). Whereas the procedural obligations enshrined in Article 13 are usually broader than the
investigative obligations under substantive provisions, including the question of how the
applicants should be involved in the proceedings and of the appropriate compensation to the
victim or his/her family.162 The Court will generally find a violation of Article 13, together with
a breach of the investigative obligation under the substantive Convention provision, in case it is
clear that such state’s failure influenced the applicants’ access to other available and effective
remedies for holding those responsible accountable and for obtaining compensation.163
However, in cases arisen from the medical negligence, the Court took another route and
interpreted the procedural obligations under the Article 2 and Article 3 as imposing the
obligations on states to ensure the involvement of the applicants in the procedure and to provide
the appropriate and sufficient redress.164 When the Court finds a violation of the procedural
obligations under Article 2 or Article 3, it considers it unnecessary to examine the same issues
under Article 6 § 1 and Article 13 of the Convention.165 Kamber expresses the opinion, that
there is no additional element inherent in Article 6, that calls for a separate examination.166
However, Brems supposes that obligations arisen from substantive guarantees and those arisen
from procedural provisions of the Convention serve different goals: procedural provisions
protect against procedural harm itself, whereas procedural obligations under the substantive
provisions protect the substantive rights.167
The interesting case in this regard is Oyal v. Turkey, where the Court examined the
applicants’ complaints about the length of the administrative proceedings by the authorities 160 Ibid, with reference to J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden/Boston:Martinus Nijhoff Publi shers2009), pp. 503—7 161 Ibid 162 Ibid 163 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 69. 164 The analysis and examples of cases are provided in Sections 2.2.3. and 2.2.4. 165 ECtHR, 27 June 2006, Byrzykowski v. Poland, no. 11562/05, § 122; ECtHR (GC), 9 April 2009, Šilih v. S lovenia, no. 71463/01, § 216; 166 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 181 167 E. Brems, “Procedural protection – An examination of procedural safeguards read into substantive Convention Rights” in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at 159
25
under the merits of Article 2, and then examined the same problem and the applicants
complaints about the absence of the effective remedies in domestic law — under Article 6 §
1and Article 13 respectively.168 According to Kamber, the reason for such examination by the
Court could be that a lack of an effective remedy for the inordinate length of administrative
proceedings is a systemic problem in the Turkish system.169
In sum, the Court interprets state procedural obligation in the area of medical
negligence as the obligation to set up an effective judicial system in order to establish the cause
of death of a patient and the liability of those accountable. Thus, the judicial system at the
domestic level must guarantee the right to an investigation into alleged medical negligence and
the right to a remedy. These rights should not just exist in theory, but be effective in practice.
Therefore, the Court has established requirements such as promptness, effectiveness and
fairness of the decision-making process.
2.3. Violation of procedural obligations arisen under under Articles 3 and 8
In cases of alleged medical malpractice the Court examined not only positive
obligations derived from Article 2, but also under Article 3 (prohibition of inhuman or
degrading treatment)170 and Article 8 (right to respect for private and family life)171 of the
Convention.
Generally, Article 3 has been most applied in contexts where the ill-treatment was
intentionally purposely inflicted by State agents or public authorities. The wording of Article 3
explicitly imposes a negative obligation on States to refrain from inflicting serious harm on
persons within their jurisdiction.172 However, the Court interprets Article 3, read in conjunction
with Article 1, as placing also a positive obligation on states to ensure that no one suffers from
such harm.173
In order to fall within the scope of Article 3, ill-treatment must reach the so-called
“Pretty threshold”174, meaning to attain a minimum level of severity and involve actual bodily
168 ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05, §§ 83—93 169 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 181 170 I.e. ECtHR, 5 March 2013, Gulay Cetin v Turkey, no. 44084/10; ECtHR, 13 October 2015, Akkoyunlu v Turkey, no. 7505/06 171 I.e. ECtHR (inadm.), 5 October 2006, Trocellier v. France, no. 75725/0; ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04; ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05. 172 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 111. 173 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 197 174 Joint Dissenting Opinion of Judges Tulkens, Bonello and Spielmann to ECtHR, 27 May 2008, N. v. the United Kingdom, no. 26565/05, § 5
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injury or intense physical or mental suffering.175 The “Pretty threshold” also includes
humiliation or debasement of an individual, or acts that arouse feelings of fear, anguish or
inferiority, that, according to the Court amount to degrading treatment.176 So the question arises
whether the person can rely on the the guarantees set in Article 3 if, in the course of the medical
treatment, he or she was subjected to suffering due to medical negligence?
As the Court states itself, due to the fundamental importance of Article 3, it has
reserved sufficient flexibility to address the application of this article in different situations.177
Thus, the Court also recognises that Article 3 imposes positive obligations on states, when the
suffering of the person is not caused by state agents, but “flows from naturally occurring illness,
physical or mental”, where it is, or risks being, “exacerbated by treatment” stemming from
measures for which the authorities can be held responsible.178 The Court emphasised on the high
threshold in such situations, as “the alleged harm emanates not from acts or omissions of the
authorities but from the illness itself”.179 The question whether suffering from naturally
occurred illnesses that was exacerbated by treatment amounts to violation of Article 3 mostly
was addressed by the Court in cases where the patient was deemed to be in vulnerable position.
State positive obligations arisen from medical negligence towards vulnerable persons will be
discussed in more detail in Chapter 3.
The question about the state’s violation of obligations under Article 3 is also raised
when the medical error did not result in the death of a patient, but in serious illnesses and
sufferings of the patient. However, in Oyal v. Turkey, when in the course of blood transfusions
after the birth the child was contaminated by HIV, the Court ruled that notwithstanding the fact
that the child did not die, the complaints must be examined under Article 2 as the State
authorities allegedly failed to fulfil their positive obligation to protect life by not taking
preventive measures against the spread of HIV through blood transfusions.180 In reasoning, the
Court referred to its established case law, where it accepted that Article 2 can be invoked in
certain circumstances even if the victims had not died.181 The Court examined the applicants'
complaints under Article 2 as the State authorities failed to fulfil their positive obligation to
protect life by not taking preventive measures against the spread of HIV through blood
175 ECtHR, 29 April 2002, Pretty v. the United Kingdom, no. 2346/02, § 52 176 Ibid 177 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 111 178 ECtHR (GC), 13 December 2016, Paposhvili v. Belgium, no. 41738/10, § 175 with the reference to Pretty v. the United Kingdom, no. 2346/02, § 52 179 Ibid 180 ECtHR, 23 March 2010, Oya l v. Turkey, no. 4864/05, 181 Ibid, § 55 with reference to ECtHR (Grand Chamber), 28 October 1998, Osman v. the United Kingdom, no. 23452/94; ECtHR (GC), 20 December 2004, Makaratzis v. Greece, no. 50385/99 § 51;
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transfusions and by not conducting an effective investigation against those responsible for the
infection of the first applicant.182
Another example of finding states in breach of Article 3 in the course of medical care,
is when the Court recognises some acts of medical personnel as a degrading treatment.183 For
instance, in Elberte v. Latvia, the Court stressed that certain structural deficiencies in the field of
organ and tissue transplantation in Latvia caused the applicant’s suffering due to “the intrusive
nature of the acts carried out on her [applicant’s] deceased husband’s body and the anguish she
suffered in that regard as his closest relative”, that amounted to the violation of Article 3.184
Generally, in finding a state liable for a degrading treatment, the question concerning the
purpose of such treatment, whether it was to humiliate or debase the victim is an important
factor to be taken into account. However, the Court points out that the absence of any such
purpose cannot conclusively result in the absence of violation of Article 3.185
In Elberte v. Latvia the Court also examined issues concerning the failure of medical
personnel to receive the consent of the applicant prior to performing the removal of organs of
the applicant’s deceased husband. The Court found that Latvian law regarding the consent for
organs removal lacked clarity and did not guarantee adequate legal remedies against violations,
which was regarded by the Court as an unjustified interference with the applicant’s right to
respect for her private life, amounting to a violation of Article 8.186
Before, the Court had already emphasised the importance of both providing access to
the information regarding potential risks to health and of the obtaining an informed consent
from patients. In Trocellier v France, the Court established that “individuals’ physical and
psychological integrity, their involvement in the choice of medical care provided to them and
their consent in that respect and access of information enabling them to assess the health risks
to which they are exposed fall within the scope of Article 8 of the Convention”.187 The Court
further noticed that Article 8, in addition to the primarily negative obligations contained in it,
also includes state positive obligations that are “inherent in an effective respect for the rights
guaranteed”.188 Moreover, the Court indicated that the principles established in the case law
regarding the positive obligations to ensure the right to life under Article 2189 should be applied
182 Ibid, § 58 183 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 202 184 ECtHR, 13 January 2015, Elberte v. Latvia, no. 61243/08, §§ 135 - 43 185 ECtHR, 13 October 2015, Akkoyunlu v Turkey, no. 7505/06, § 32 186 ECtHR, 13 January 2015, Elberte v. Latvia, no. 61243/08, §§ 105 - 17 187 ECtHR (inadm.), 5 October 2006, Trocellier v. France, no. 75725/01 188 Ibid 189 Discussed in Section 2.2.
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mutatis mutandis in case of the interference with the right to physical integrity falling within the
scope of Article 8.190
The Court defines the positive obligations under Article 8, as states’ duties to adopt
appropriate regulations that ensure that doctors acknowledge “the foreseeable consequences of
the planned medical procedure on their patients’ physical integrity” and are obliged to inform
their patients of such foreseeable consequences in advance to enable them to give informed
consent.191 Consequently, if the patient has not been duly informed by doctors prior to the
medical intervention and a foreseeable risk materialises, the state may be found directly
responsible for this lack of information under Article 8.192
In assessing whether the state violated positive obligations inherent in Article 8, the
element of foreseeability of the consequences of planned medical procedure is of crucial
importance. In Trocellier v France, the Court, referring to the expert report, found the
application inadmissible, as the paralysis experienced by the applicant after the operation was
not a “foreseeable” consequence of such operation.193
It seems that in Trocellier v France, the Court points out one more element that is
necessary for finding a state directly liable for violation of Article 8, that is: “if, as in the instant
case, those doctors work in a public hospital”.194 The Court uses the same expression in
Codarcea v. Romania.195 In M.A.K. and R.K. v. the United Kingdom the Court indicates on the
fact that the hospital, where the violation occurred, was a public institution and therefore the
acts and omissions of its medical staff could in principle engage state responsibility.196
However, in Csoma v. Romania, the Court already speaks about doctors in general, without
specifying the type of ownership of the hospital, where such doctor is employed.197
From the Court’s reasoning in Csoma v. Romania it flows that in certain circumstances
the Court may accept a justification for the doctor’s failure to obtain informed consent, namely
due to “time constraints”.198 However, in this particular case, the Court found that there was no
urgency, and thus the interference was unjustified. Although the Court admitted that Romanian
legislation expressly requires the doctor’s obligation to obtain informed consent prior to a
190 ECtHR (inadm.), 5 October 2006, Trocellier v. France, no. 75725/01 191 Ibid 192 Ibid 193 Ibid 194 Ibid 195 ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04; 196 ECtHR, 23 March 2010, M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, § 76 197 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05, § 44: “if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be directly liable under Article 8 for this lack of information”. 198 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05, § 51
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medical procedure that involves any risk,199 due to the “serious consequences of the procedure”
and the absence of the informed consent obtained from the patient, the Court “finds it
unacceptable” that the performance of medical operation contravened rules established by the
national law.200 Finding, moreover, the state’s failure to provide the applicant with the proper
redress, the Court concludes that there has been a violation of Article 8. 201
Similar reasoning for establishing the state’s interference in applicants' right to respect
for their family life under Article 8, have earlier been used by the Court in M.A.K. and R.K. v.
the United Kingdom judgement. The case concerned taking of blood samples and photographs
of a child by the medical authorities in the absence of the parents and without their consent. As
in Csoma v. Romania the Court also examined whether the performance of medical procedures
of the child without parental consent was justified by the urgency, namely critical condition of
the patient or that her situation was likely to deteriorate, and came to the conclusion that there
was no pressing need in an immediate treatment of the child.202 Consequently, the Court did not
find grounds for justification of the authorities conduct and therefore established that the
interference with the right to respect for private life was not in accordance with the domestic law
and was in violation of Article 8.203
2.4. Conclusions
In assessing alleged violations of convention rights in the area of medical negligence,
the Court frequently refers to the concept of implied positive obligations, including procedural
obligations. From the case law it is seen that under procedural obligation in the area of medical
negligence, the Court understands the obligation to set up an effective judicial system in order to
establish the cause of a death of a patient and the liability of those accountable. Thus, the
judicial system at the domestic level must guarantee the right to an investigation into alleged
medical negligence and the right to a remedy. It appears that the Court, when examining
whether states have complied with an obligation to investigate, does not evaluate the result of
such investigation but the means of how it was conducted. The Court assesses the length and the
effectiveness of the procedure, whether the victim was provided with the opportunity to
participate in the investigation, as well as whether the victim can obtain access to the
conclusions of the investigation.
199 Ibid § 49 200 Ibid § 50 201 ibid § 68 202 ECtHR, 23 March 2010, M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, § 79 203 Ibid, § 80
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The question arose concerning the required remedies in cases of medical negligence. In
particular, the question whether recourse to criminal law is mandatory in order to exhaust
domestic remedies? Based on an analysis of the case law, it is seen that the Court considers the
possibility of obtaining civil redress in cases arisen from medical negligence, afforded by the
domestic legal system, as complying with positive procedural obligations by states. However,
the findings differ in case a gross medical negligence occurred. In the Court’s view, state
authorities are responsible to institute criminal proceedings in such cases.
In addition to the procedural guarantees under Article 2, victims of medical negligence
can also invoke the rights set in Articles 3 and 8 of the Convention. If the sufferings of a person
results from a naturally occurring illness, but was exacerbated by measures for which the
authorities can be held responsible, according to the established case law, the Court finds a state
in violation of Article 3. The failure of medical professionals to provide patients access to
information regarding potential risks to their health and the failure to obtain an informed consent
from patients can amount to a breach of Article 8.
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CHAPTER 3: EVOLUTION OF THE COURT’S APPROACH TO POSITIVE
OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE
3.1. Distinction of positive obligations. An obligation to set up an adequate legal
framework
In early judgements in the area of medical negligence, the Court did not examine
positive obligations of states under the substantive and procedural limb separately. For instance,
in Calvelli and Ciglio the Court did not attribute clearly the obligation “compelling hospitals …
to adopt appropriate measures for the protection of their patients' lives” to the substantive or
the procedural scope of Article 2. However generally, despite the Court itself not establishing a
particular classification of positive obligations, it has generally distinguished between
substantive and procedural positive obligations.204 Thus, in Giuliani v. Italy the Court speaks
about the procedural obligation under Article 2 as “a distinct obligation”, with the reference to
the case law, where the question of procedural obligations “has consistently [been] examined
separately” from the question of compliance by the state with the substantive obligation, and
often the violation of a procedural obligation under Article 2 has been claimed without any
complaint as to the substantive obligations.205 In some cases compliance with the procedural
obligation under Article 2 has even been subjected to a separate voting on the admissibility of
the case.206 Similarly, in later cases concerning medical negligence the Court found that “the
procedural obligation has not been considered dependent on whether the State is ultimately
found to be responsible for the death”207 and the procedural obligation to conduct an effective
investigation under Article 2 “can be considered to be a detachable obligation”.208
Substantive and procedural obligations in principle serve different rationales.209 Thus,
the former are regarded as “[t]he part of the law that creates, defines, and regulates the rights,
duties, and powers of parties”, whereas the latter are seen as “[t]he rules that prescribe the
steps for having a right or duty judicially enforced.”210 In general terms, it is considered that
substantive obligations have a preventive function, whereas procedural obligations a remedial
one. However, the distinction in functions can not be regarded as fully corresponding to the
204 V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation, Lund University, 2015), 449 205 ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 158; ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no. 23458/02, § 299 206 ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 158, with reference to Slimani v. France, 27 July 2004, no. 57671/00, §§ 41-43, and Kanlıbaş v Turkey, (inadmiss), 28 April 2005, no. 32444/96. 207 ECtHR (GC), 9 April 2009, Silih v. Slovenia, no. 71463/01, § 156 208 Ibid, § 159 209 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 48 210 Ibid, with the reference to Black’s Law Dictionary (Abridged 9th edn, Saint Paul, West, 2010), 1039 and 1231
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distinction between both types of obligations, and therefore cannot serve as a ground for such
distinction.211 Another approach to make a distinction between substantive and procedural
obligations refers to the aim that such obligations are made to achieve. Hence, substantive
obligations aim to contribute to a particular state of affairs, and procedural — “aim only at a
certain kind of formal fairness”.212
As it was mentioned above, in later judgements in the area of medical negligence, the
Court examined separately procedural and substantive breaches under Article 2. The positive
obligation to set up a “regulatory structure” requiring hospitals to take appropriate steps to
ensure the protection of patients’ lives was subjected to the scrutiny under the substantive limb
of Article 2,213 and the obligation to set up “an effective judicial system” related to the
procedural aspect.214
The positive obligation to put in place a legal and administrative framework is required
by the Court in a number of cases,215 including cases in the area of medical negligence.
Lavrysen emphasised on the necessity of such obligation, especially in horizontal relations, as
private actors should be bound by domestic law to refrain from infringing human rights.216
Moreover, it is important to regulate the behaviour of private actors in advance, as an ex post
response to a violation may be already insufficient due to the risk of irreparable harm caused by
such violation,217 as, for example, if death of a patient occurred as a result of medical
negligence. Thus, the proper regulation of the behaviour of private actors in advance through the
provision of a legal and administrative framework may be more sufficient for the protection of
patients’ lives.
Van Leuven has identified three reasons why it may be more convenient for states to
intervene in horizontal relations through ex ante regulation rather than through ex post judicial
intervention. The first reason concerns the fact, that regulatory authorities and legislators “enjoy
more democratic legitimacy than courts”, and “are better placed to make general policy
211 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 46 212 Ibid, citing L. May, Global Justice and Due Process (Cambridge University Press, 2011), 48. 213 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 107 214 Ibid, § 125 215 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 110 216 Ibid 217 Ibid
33
choices”.218 The second reason is that, from the perspective of legal certainty, ex ante regulation
serves better.219 The third refers to the fact that legislators may employ other means of
protection than courts.220
Although it seems that the importance of the requirement to put in place an adequate
legal and administrative framework increased in numerous areas of the Court’s case law, the
Court has not been very clear about why in certain circumstances only an ad hoc response
nonetheless remains acceptable.221
The next Section of this paper will discuss the evolution of the Court’s approach from
mere examination of the states ad hoc response to breaches arisen from medical negligence
towards recognition of the ex ante obligation to put in place a legal and administrative
framework, that in particular situations leads to finding the state in breach of a substantive limb
of Article 2.
3.2. From procedural to substantive protection.
In cases on the state’s alleged responsibility arisen from medical negligence, the Court
had focused more on the procedural aspects of positive obligations, as was already mentioned
above. Following the case of Powell, where the Court examined the death of the applicants’ son
and the responsibility of the doctors involved “from the angle of the adequacy of the
mechanisms in place for shedding light on the course of those events”,222 more weight has
always been attached to the procedural requirements that are implicitly set in Article 2. Thus,
the Court scrutinised whether the national legal system was adequately tailored in order to
establish the cause of a death of the patient and any liability on the part of the medical staff
concerned.
However, already in Powell, the Court spoke about the obligation of the state to set
“adequate provision for securing high professional standards among health professionals and
the protection of the lives of patients”.223 Even before, in the Erikson decision, in addition to the
procedural obligation to establish an effective judicial system, the Court has already included in
the state’s positive obligation “the requirement for hospitals to have regulations for the
protection of their patients' lives”.224 Within time the Court established a separate self-sufficient
218 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 111, with reference to N. Van Leuven, Contracten en mensenrechten (Antwerpen, Intersentia, 2009), 49. 219 Ibid 220 Ibid, 112 221 Ibid, 114 222 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99 223 Ibid 224 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97.
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obligation in Calvelli and Ciglio v. Italy judgement: “…positive obligations therefore require
States to make regulations compelling hospitals, whether public or private, to adopt appropriate
measures for the protection of their patients' lives”.225 The reason to interpret Article 2 as
imposing such obligation on states lies in the necessity to protect patients, to the most possible
extent, from the serious consequences that medical interventions may inflict in this respect.226
However, in Calvelli and Ciglio v. Italy the Court did not explicitly indicate whether
this requirement — to make regulations obliging hospital to have such protective measures — is
a substantive positive obligation or relates to the procedural aspects. Moreover, in this particular
case the Court did not examine whether the authorities in fact complied with their obligation to
protect the patient’s life.227 The Court assessed the State’s compliance with Article 2 only in
connection with the obligation to set up an effective judicial system, in particular, to ensure the
applicant’s right to remedy.228 The Court used to scrutinise only the procedural aspects of the
case, instead of applying a genuine two-tiered scrutiny under the substantive and procedural
limb of Article 2.229
Along with establishing the obligation to have in place an adequate legal framework
securing the protection of the lives of patients, the Court in Powell developed the principle that,
if a state complied with such obligation, the “error of judgment on the part of a health
professional or negligent co-ordination among health professionals in the treatment of a
particular patient” cannot fall within state’s responsibility.230 This principle seemed to be
consistent with the Court’s position from the earlier judgements in the area of medical
negligence and also was upheld in the subsequent cases.231 For example, in 1991 in Tavares v.
France, the case concerned the death of the applicant’s wife as a consequence of serious
complications following the delivery of the child,232 the Commission rejected a complaint on the
ground that the women could not have died as a result of clinical negligence as the hospital had
the required procedures in place and doctors followed them as directed.233 The Commission was
satisfied with finding that the requirement to have the provisions in place was fulfilled by 225 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96 § 49 226 ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04, § 104. Available only in French. The Court stated as follows: “sur la nécessité de préserver ces derniers … des conséquences graves que peuvent avoir à cet égard les interventions médicales”. 227 Such wording was used by the Court in the subsequent case ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 110 228 ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no. 32967/96 §§ 51 - 7 229 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 45 230 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/99 231 The same line of reasoning is used, for example, in Byrzykowski v. Poland (ECtHR, 27 June 2006, no. 11562/05, § 104) 232 ECtHR (decision), 12 September 1991, Tavares v. France, no. 16593/90 233 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), 201
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France and did not deepen into how the system functioned in the instance of this particular
case.234
In later judgements in the area of the medical negligence, the Court started to assess the
alleged violations separately under the substantive and procedural limb of Article 2. Under the
substantive limb the Court only assessed whether the requirement to have in place the regulatory
framework aimed at protecting patients’ rights was fulfilled by a state. Consequently, the
Court’s examination did not result in violations of substantive obligations, if it found the
legislative framework of the state concerned compatible with Article 2 (“sufficiently clear…to
regulate with precision the decisions taken by doctors in situations such as that in the present
case”, and “apt to ensure the protection of patients’ lives”)235, or if the Court admitted that it
had not been found that the state health authorities had been or should have been aware about
the risks that resulted in the infringement of the patient’s right to physical integrity.236 In certain
cases, where the existence of a legislative and regulatory framework was not in dispute between
parties, the Court did not make any evaluations of the substantive obligations of the state
concerned.237
However, in Mehmet and Bekır Şentürk v. Turkey238 the Court, while examining the
alleged state violation of the substantive obligation under Article 2, used a different approach.
The Court emphasised on the considerable difference of the facts in the present case from the
preceding cases and therefore acknowledged that principles and requirements established
previously in the case law cannot be used per se, as they appeared in a “substantially different
context”.239 Contrary to the cases arisen from mere medical negligence, this case also included a
denial of the healthcare that the State concerned has undertaken to make available to citizens
generally. The applicants’ wife and mother death occurred as a result of not only error of
judgement on the part of medical staff, but also the refusal of the hospital to provide her with an
appropriate medical care due to inability to pay hospital fees.240 The Court defined its task as to
examine whether the authorities “did what could reasonably be expected of them”, and
consequently whether the obligation to protect the patient’s physical integrity was complied
with.241 The Court also indicated that it was not its task to decide on Turkish public-health
234 A.-P Den Exter, Health care law-making in Central and Eastern Europe: review of a legal-theoretical model (Antwerp | New York, Intersentia, 2002)., 88 235 ECtHR, 5 June 2015, Lambert and Others v. France, no. 46043/14, § 160 236 ECtHR, 1 December 2009, G.N. and Others v. Italy, no. 43134/05. The Court did not find substantive violations in this case, as there was no evidence that the Ministry of Health had known or should have known about the risk of transmission of HIV or hepatitis C via blood transfusion. 237 ECtH, 30 June 2015, Altug and Others v Turkey, no. 32086/07, § 73 238 The case has been already discussed in connection to the right to remedy in Section 2.2.3. 239 ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no. 13423/09, § 85 240 Ibid, § 90 241 Ibid, § 89
36
policy on access to treatment.242 The Court’s finding of the State’s failure to have in place a
legislative framework, that regulates situations of medical urgency, when the patient is unable to
pay fees, together with the fact that Mrs. Senturk was “deprived of the possibility of access to
appropriate emergency care”, was sufficient for the Court to hold that the State had failed to
comply with its substantive obligation to protect the patient’s physical integrity under Article
2.243
Another case, where Turkey was found in violation of the substantive requirements of
the right to life, is the case Asiye Genç v Turkey, about the death of the newborn in an
ambulance, while waiting to be treated for a respiratory problem.244 The Court rejected the
government’s argument that the death of a child was caused due to the absence of a place in
hospitals, which was argued by the government to be an objective obstacle not attributable to the
doctors.245 The Court stressed that a lack of space in hospital cannot justify the poor
coordination among health professionals and the absence of medical care provided to the
child.246 Moreover, the Court examined the adequacy of the public health and hospital system
and, in particularly, the quantity and the condition of equipment in the hospital concerned and in
other hospitals in the region.247 It was concluded that Turkey had not sufficiently ensured the
proper organization and functioning of the public hospital services and, as a result, the
applicant's son was denied in lifesaving medical treatment.248 In this case the Court was almost
referring to a general problem of the whole health care system in Turkey, as it mentions a
dysfunction of the health services.249 It can be argued that in this case the Court is slowly
moving towards recognition of a right to health under Article 2.250 Consequently, the judgement
met a lot of criticism, including from Judges Lemmens, Spano and Kjølbro, expressed in their
Concurring opinion. They argued that it was not in the Court’s power to examine the public
health system, having regard to the fact that Article 2 should not be interpreted as establishing
standards of the quality of treatment and the quantity of the equipment in public hospitals.251
To support its authority for contesting the deficiencies in the health care system of
Member States under the Convention, the Court stressed that “the traditional view must be read
242 Ibid, § 95 243 Ibid, § 96 244 ECtHR, 27 January 2015, Asiye Genç v Turkey, no. 24109/07 245 Ibid, § 80 246 Ibid 247 Ibid 248 Ibid, §§ 80-2 249 N. Quenivet, Emergency Health care and Article 2 ECHR, Euro Rights Blog. <http://eurorights.net/euro-rights-blog-emergency-health-care-and-article-2-echr/> (accessed on 10 April 2017) 250 Ibid 251 ECtHR, 27 January 2015, Asiye Genç v Turkey, no. 24109/07, Concurring Opinion of Judges Lemmens, Spano and Kjølbro, § 4
37
in the light of developments in the case-law under the Convention”.252 It seems that it becomes
more and more difficult to separate fundamental rights and freedoms enshrined in the
Convention and socio-economic rights, including health care issues. Moreover, the Court takes
into consideration the legal and policy documents relating to health that were adopted within the
framework of the Council of Europe, including recommendations of the Committee of Ministers
in the health sector, the Oviedo Convention, the case-law under the European Social Charter on
health-related issues.253 Such materials are used in order to enrich the Court’s judgments and
“provide a key point of departure” if it appears to examine whether there is an emerging
European trend in a particular area.254
However, the aim of the paper is not to deepen in the Court’s approach on dealing with
socio-economic rights, including the right to a health care, and relevant criticism of the Court’s
judicial activism. The paper, and this Chapter in particular, is intended to describe how the
Court’s approach towards the state’s responsibilities in the area of medical negligence evolved
from findings of purely procedural breaches into a more thorough examination and findings of
the substantive violations arisen from medical negligence.
After the judgements Mehmet and Bekır Şentürk v. Turkey and Asiye Genç v Turkey,
despite criticism received and separate opinions of judges, the Court has followed its position on
the existence of the direct causal link between the death of patients and the structural problems
of health care services in Turkey in the case Aydogdu v Turkey. The Court ruled against Turkey
once again, as the applicant’s child was found to be a victim of both negligence and structural
deficiencies that had precluded her from receiving appropriate emergency medical treatment.255
So, in these last judgements, while examining the state’s positive obligations under the
substantive limb of Article 2, the Court spoke about the structural failures of health services
that, solely or together with medical negligence, had led to the death of patients. However, the
Court did not recognise the state’s responsibility arisen only from negligence on the part of
doctor. That was before the Chamber judgement in the case Lopes de Sousa Fernandes v.
Portugal, that concerned the negligent failure to diagnose meningitis that subsequently led to the
death of applicant’s husband. Firstly, the Court admitted that “the authorities’ acts and
omissions in the sphere of public health-care policy may in certain circumstances engage their
responsibility under the substantive limb of Article 2”.256 Then, it found it important in the
252 Council of Europe/European Court of Human Rights. Thematic Report: Health-related issues in the case-law of the European Court of Human Rights. June 2015. 4 253 Ibid 254 Ibid 255 ECtHR,30 August 2016, Aydogdu v Turkey, no. 40448/06 256 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 108
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circumstances of the present case to “ascertain whether the authorities did what could
reasonably be expected of them”, and particularly whether the authorities had adhered to their
obligation to protect the physical integrity of the patient, “especially by providing him with
appropriate medical care”.257 Although the Court admitted that it did not have an authority to
question the doctor’s judgement on clinical matters, it found that the lack of coordination
between hospital departments constituted a violation of the substantive aspect of Article 2.258
Such findings are seen as a radical departure from the prior case-law,259 as before the Court
stated that the mere error of judgement on the part of the doctor or negligent coordination
among medical staff are not sufficient to find a state in the breach of Article 2.260 On the
contrary, in Lopes de Sousa Fernandes v. Portugal, the Court asserted that such negligent
coordination demonstrated the failings in public hospital services, that may amount to a breach
under Article 2261 and thus this judgement is in accordance with the established case law
(Mehmet and Bekır Şentürk v. Turkey and Asiye Genç v Turkey). So, referring to the decision of
the majority of the Court, the mere negligence of doctors may be sufficient for a findings against
a state.
Not surprisingly, two of seven judges — Judges Sajó (President) and Tsotsoria —
voted against the substantive violation of Article 2 in this case. In their Dissenting Opinion,
they emphasised, firstly, the absence of the qualification of judges of the Court to decide on
medical diagnosis262 and also the contradiction of the present decision to the established in case
law principles “referred to in the judgment itself”.263 Taking into account the strength of the
dissent and the importance of the issue at stake, it will be interesting to see whether the Grand
Chamber will reaffirm the principle of the absence of state responsibility for mere doctor’s
negligence or will accept the Chamber’s evolved approach on the interpretation of state positive
substantive obligations in the area of healthcare.
257 Ibid, § 110 258 Ibid, § 114 259 J. Hyam, Mere negligence may breach Art 2 in NHS hospital cases. The UK Human Rights Blog. <https://ukhumanrightsblog.com/2016/01/12/jeremy-hyam-mere-negligence-may-breach-art-2-in-nhs-hospital-cases/> (accessed on 15 April 2017) 260 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no. 37900/97; ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no. 45305/9; ECtHR, 27 June 2006, Byrzykowski v. Poland, no. 11562/05 261 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, § 114 262 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no. 56080/13, Dissenting Opinion of Judges Sajo and Tsotsoria 263 Ibid, principles established in Powell, referred to in Byrzykowski v. Poland, that were already described above.
39
3.3. Implication of the vulnerability concept for expanding positive obligations
The vulnerability concept was introduced by the Court in Chapman v. the United
Kingdom.264 The case concerned the Roma minority, who were recognised by the Court as
vulnerable, and characterised as belonging to a group whose vulnerability is caused by societal,
political and institutional circumstances.265 Following this, the Court extended the list of
vulnerable groups to persons with mental disabilities, people living with HIV and asylum
seekers.266
Although the Court did not establish clear indicators to determine what makes a group
vulnerable, based on the case law following characteristics of vulnerability concept can be
identified: relational, particular, and harm-based.267 Firstly, as defined by Timmer: “the Court
locates vulnerability not in the individual alone but rather in her wider social circumstances.”
The notion “particularly” means that such people are “more vulnerable than others”.268 Another
characteristic concerns harm that was inflicted on vulnerable groups due to the “(historical)
prejudice and stigmatization”, and — stemming from later judgements269 — due to “social
disadvantage” and “material deprivation”270. Recently, the Court started to focus on poverty
and “negative social attitudes”271 as indicators of vulnerability in the context of Articles 3 and
8.
The vulnerability concept was expanded by the Court in M.S.S. v. Belgium and Greece,
where dependency on the State support was regarded as one more indicator of a person’s
vulnerability.272 Although the dependency argument has previously been relied upon by the
Court in other Article 3 cases, concerning prisoners and detainees273, the Court’s finding in
M.S.S. v. Belgium and Greece was criticised from the standpoint that such interpretation can
lead to “the problem of the open-endedness of the vulnerable group concept”.274
In sum, after analysis of the Court’s case law, the set of indicators that determine what
renders a group vulnerable include: prejudice and stigmatization, dependency on the State,
264 ECtHR (Grand Chamber), 18 January 2001, Chapman v. the United Kingdom, no. 27238/95, § 96 265 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013). 162 266 ECtHR, 20 May 2010, Alajos Kiss v. Hungary, no. 38832/06; ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09 267 Ibid, 162 268 Ibid, 163 269 ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09, ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07 270 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013). 163-65 271 Ibid, 165 272 ECtHR (GC), 21 January 2011, M.S.S. v. Belgium and Greece, no. 30696/09 273 I.e. ECtHR, 17 December 2009, Denis Vasilyev v. Russia, no. 32704/04, § 115 274 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 169
40
social exclusion and disadvantage. However, according to Timmer, who refers to international
human rights reports and scholarly works, more groups could have been recognised as
vulnerable groups, like: national minorities, religious minorities and LGBT people.275
The advantage of broadening of the vulnerability concept is connected with
developments, seen by scholars as positive276, in the Court’s case law. Timmer speaks about
“recognition of positive obligations” when it comes to the members of particularly vulnerable
groups. Thus, states are obliged to provide a certain level of protection that is necessary to the
particular needs and concerns of vulnerable groups.277
In the area of medical negligence, the most prominent case where the Court implied the
vulnerability concept for expanding positive obligations is Centre for Legal Resource on behalf
of Valentin Campeanu v. Romania (hereunder — CLR for Valentin Câmpeanu).278 The Court
reiterated the state positive obligation established in Calvelli and Ciglio v. Italy279, with
emphasis that such obligation applies in following circumstances: “especially where patients’
capacity to look after themselves is limited”280, when “young children who are especially
vulnerable and are under their exclusive control”281, and “regarding the medical care and
assistance given to young children institutionalised in State facilities”.282 The Court recognized
the vulnerability of persons in custody and the duty of state authorities to protect them, and even
more, “to demonstrate special care in guaranteeing such conditions as correspond to special
needs resulting from disability”.283 While assessing the evidence, the Court stressed on the
necessity to pay particular attention to Mr Câmpeanu’s vulnerable condition and dependence of
him on the state for the duration of his whole life, and thus State’s obligation “to account for his
treatment” and “to give plausible explanations concerning such treatment”.284 The Court
concluded that the continuous failure of the medical personnel to provide Mr Câmpeanu with
appropriate care and treatment has led to his untimely death. Thus, Romania was found in
breach of the substantive requirements of Article 2 “by not providing the requisite standard of
275 Ibid, 170 276 Ibid, 175 277 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 177 278 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08 279 “to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives” Calvelli and Ciglio v. Italy, § 49, described in Section 3.2. 280 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 130, with reference to Dodov v. Bulgaria, § 81 (ECtHR, 17 January 2008, no. 59548/00) 281 Ibid, with reference to Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, § 35 (ECtHR, 10 April 2012, no. 19986/06) 282 ibid, with reference to Nencheva and Others, §§ 105-116 (ECtHR, 18 June 2013, no. 48609/06) 283 Ibid, 49 284 Ibid, 52
41
protection for Mr Câmpeanu’s life”.285 This case can serve as a good example proving
Timmer’s opinion, that the Court often reacts to vulnerability by deepening existing substantive
positive obligations, in particular by transforming an obligation of care into an obligation of
result.286
Moreover, in CLR for Valentin Câmpeanu one of the factors that influenced the Court’s
finding of a substantive violation was the failure of authorities to obtain the consent of Mr
Câmpeanu for his transfers from one medical unit to another, for his admission to the psychiatric
institution and the failure to inform or consult Mr Câmpeanu about the medical care provided to
him.287 In the judgement in the case Stanev v. Bulgaria, the Court established that, when
providing a protective measure, authorities should take into account to the most possible extent
the wishes of persons capable of expressing their will. Failure to do so could amount to abuse
and violation of the rights of vulnerable persons.288
The vulnerability concept is frequently used by the Court in cases concerning the
alleged inhuman and degrading treatment under Article 3 in connection with the state failure to
provide appropriate medical care to persons in custody. In the Court’s case law, it is firmly
established that detainees are vulnerable due to their dependency on the state. The fact that such
persons are within the control of the authorities means that their physical well-being depends on
the state.289 In the case of M.S. v. The United Kingdom, the Court ruled that states are under an
obligation to provide adequate treatment to detainees with mental health problems.290 Generally
states are obliged to provide “the requisite medical assistance” to all ill prisoners.291 Albeit, the
Court accepts that medical assistance in prison can not always be on the same level as in the best
hospitals.292 However, the aim of the paper is not to deepen into the right to health of certain
vulnerable groups, including detainees, but to discover how the vulnerability can influence the
Court’s examination of the positive obligations arisen from medical negligence.
285 Ibid, §§ 143-44 286 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 212. Timmer points on the case M.S. v. UK, where the Court has held that the authorities are under an obligation to ensure detainees with mental health problems are given adequate treatment, as an example of turning an obligation of care into an obligation of result by the Court on the ground of the vulnerability of the applicant. 287 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 135 288 ECtHR (GC), 17 January 2012, Stanev v. Bulgaria, no. 36760/06, § 153. 289 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013); 199, with reference to Denis Vasilyev v. Russia, § 115 (ECtHR, 17 December 2009, no. 32704/04) 290 ECtHR, 3 May 2012, M.S. v. United Kingdom, no. 24527/08, 291 F. Tulkens, V. Panayotis, “The right to health in prison: developments in Article 3 of the European Convention on Human Rights”, The global community: yearbook of international law and jurisprudence (2007, vol.1), 145 at 154. With reference to ECtHR, 29 April 2003, McGlincliexi v. the United Kingdom, § 46; ECtHR, 14 November 2002, Mouisel v. France, § 40 292 Ibid, referring to ECtHR, 26 October 2006, Khudobiu v. Russia, § 93.
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In cases, where medical negligence allegedly amounts to inhuman and degrading
treatment under Article 3, the main question is whether such treatment reaches “the minimum
level of severity” (“Pretty threshold”) in order to find state in violation of Article 3 and in this
test vulnerability is a decisive factor.293 As it was previously mentioned294, under “Pretty
threshold”, except actual bodily injury and/or intense physical or mental suffering, Article 3 also
may be enacted if “the suffering which flows from naturally occurring illness, physical or
mental…exacerbated by treatment, whether flowing from conditions of detention, expulsion or
other measures, for which the authorities can be held responsible”.295 Such exacerbation may
be found by the Court in case of a refusal to provide a medical treatment to a prisoner296, the
failure to provide treatment that corresponds to the prisoner’s state of health297, when medical
treatment is not administered by a specialist298 or in case of the absence of a correct diagnosis299.
In addition to influencing substantive positive obligations, the vulnerability concept
also influences the required procedural safeguards. In Denis Vasilyev v. Russia, the Court ruled
that an exceptionally neglectful and inadequate response of the medical services to a severe head
injury of the applicant after a violent attack against him amounted to “gross medical
negligence” that called for an official and effective criminal investigation.300 Further important
progress was made in the case of Gulay Cetin v. Turkey, where the Court had expressly
distinguished the medical negligence in general from medical malpractice towards persons in
custody.301 In this case, concerning the continued detention of women diagnosed with cancer
that resulted in death302, the Court held that, contrary to the principles established in Calvelli
and Ciglio on the procedural obligation arisen in case of medical negligence303, in prison
context ,the obligation of the authorities to initiate promptly an official investigation was found
by the Court to be the only appropriate procedural response.304 The Court notices that it has
293 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013), 210 294 Section 2.3. 295 ECtHR, 29 April 2002, Pretty v. the United Kingdom, no. 2346/02, § 52 296 ECtHR, 4 October 2005, Sarban v. Moldova, no. 3456/05, § 82 297 ECtHR, 12 July 2007, Testa и Croatia, no. 20877/04 , § 52 298 ECtHR, 3 April 2001, Keenan v. the United Kingdom, no. 27229/95, § 115 299 ECtHR, 13 July 2006, Popov v. Russia, no. 26853/04, § 212 300 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 184 301 Ibid 302 ECtHR, 5 March 2013, Gulay Cetin v Turkey, no. 44084/10 303 not binding criminal liability, discussed in Section 2.2.3. 304 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights.” The inter-American Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at 184
43
never suggested that the requirements set in Calvelli and Ciglio on the non-mandatory recourse
to criminal proceedings should be applied similarly and without any distinction to the issues of
protection of the health of prisoners. This approach was also followed in subsequent
judgements.305
An interesting approach was taken by the Court in case Akkoyunlu v. Turkey in
connection with medical assistance provided to military serviceman. The Court examined this
case with special regard to the status of an applicant as a conscript.306 The Court noticed that
while being a conscript, the applicant was not able to receive the necessary medical treatment
from a hospital of his own choice.307 The Court further stressed on the dependency of a
conscript on the State and on the fact that events occurring in the army “lie wholly, or in large
part, within the exclusive knowledge of the authorities”.308 Moreover, in connection to military
personnel the Court interpreted Article 3 as imposing positive obligation on states “to ensure
that a person should be able to perform his military service in conditions which are compatible
with respect for human dignity”, including securing his health and well-being and “providing
him with the medical assistance he requires”. The Court, with reference mutatis mutandis to
Beker v. Turkey309, established that “the State is under an obligation to account for any injuries
or health problems allegedly resulting from acts or omissions of the military authorities”.310
So, after the analysis of the established case law it is seen how the vulnerability
reasoning influence the extension of existing rights through the doctrine of positive obligations.
What is more, vulnerability considerations sometimes result in the creation of new rights under
the Convention provisions.311 Thus, the Court has relied on the vulnerability concept to justify
the gradual extension of positive obligations into the socio-economic sphere.312 In CLR for
Valentin Câmpeanu the Court concluded that domestic authorities put Mr Câmpeanu’s life in
danger not only due to the failure of medical staff to provide proper treatment, but also due to
the inadequate situation at the Poiana Mare Neuropsychiatric Hospital (PMH) with the lack of
heating and appropriate food, the shortage of medical staff and medical resources, including
medication, that had led to an increase in the number of deaths during the winter of 2003.313 So,
305 I.e. ECtHR, 14 March 2013, Salakhov and Islyamova v. Ukraine, no. 28005/08, § 187 306 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06, § 33 307 Ibid 308 Ibid, § 34 309 ECtHR, Beker v. Turkey, 24 March 2009, no. 27866/03, §§ 41-43, 310 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06, § 34 311 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013), 212 312 Ibid 313 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no. 47848/08, § 143
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the Court through the positive obligation of a state towards a vulnerable group assessed
generally the situation in the sphere of healthcare in Romania, in particular in PMH.
This and other cases are examples of how the Court interprets the Convention in an
evolutive manner. It is seen that except the concept of “the Convention as a living instrument”,
the vulnerability concept is also a “part of the Court’s toolbox of concepts that it uses to create
its dynamic approach”.314 However, the weight the Court attaches to the vulnerability concept
should not be overstated, as it is often only one of the factors taken by the Court into account,
albeit very often a decisive one.315 Timmer quotes Judge Power from a dissent in F.H. v.
Sweden “vulnerability is a factor to be weighed in the balance.”316 Nevertheless, it is clear that
the Court insists that the state should take into account the particular vulnerability of the persons
it is dealing with.317
3.4. Conclusions
The Chapter demonstrates the evolution of the Court’s approach from only examination
of the states’ response to breaches arisen from medical negligence, towards, firstly, assessment
of compliance of states with substantive obligation to put in place a legal and administrative
framework, and, secondly, towards the examination of mere medical negligence on part of the
medical personnel that could in particular circumstances lead to findings against the state.
Firstly, it was found that in early judgements in the area of medical negligence, the
Court did not make a distinction between substantive and procedural aspects of positive
obligations. Although the Court included in positive obligations the requirement for hospitals to
have regulations for the protection of patients' lives, the assessment was mostly directed on
whether states had complied with the obligation to provide the access to remedy and the
obligation to conduct an effective investigation. The evolution of the Court’s approach is seen in
later judgements, as positive obligation to set up a regulatory structure requiring hospitals to take
appropriate steps to ensure the protection of patients’ lives was independently scrutinized under
the substantive limb of Article 2, while the obligation to set up an effective judicial system was
examined from the viewpoint of the procedural limb.
Further, the aim was to analyse to what extent, in recent judgements, the Court has
imposed substantive positive obligations. It appears that previously the Court rejected complaints
in cases when death had occurred as a result of clinical negligence, if the hospital had the
314 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability. (PhD dissertation, Ghent University, 2013), 213 315 Ibid, 177 316 Ibid, 211, referring to F.H. v. Sweden, (20 January 2009, no. 32621/06, Power and Zupančič J., dissenting). 317 Ibid
45
required procedures in place and doctors followed them as directed. However, when the case
involved not only mere medical negligence, but also a denial of the healthcare that the State has
undertaken to make available to citizens, the Court found violations of substantive obligations by
the state regardless of the existing legislative framework. It was concluded that the mere
negligence on the part of health professionals did not amount to the responsibility of a state
before the case Lopes de Sousa. It seems that in the judgement on this case, the Court went a step
further and found Portugal to be in violation of Article 2 for the mere medical negligence of a
doctor.
After analysing Lopes de Sousa case in comparison with previous cases in the area of
medical negligence, it can be said that this time the Court seems to be radical in its reasoning.
Before, the Court stated that a mere error of judgement on the part of the doctor or negligent
coordination among medical staff are not sufficient to find a state in breach of Article 2. On the
contrary, in Lopes de Sousa, despite the Court having admitted that it did not have the authority
to question a doctor’s judgement on clinical matters, it found that the lack of coordination
between the hospital’s departments «attests to failings in the public hospital service», that led to
the deprivation of applicant’s husband of the possibility of access to appropriate emergency care
and thus constituted a violation of the substantive aspect of Article 2. The case was referred to
the Grand Chamber, so soon it will be clear whether the Grand Chamber accepts the reasoning
that mere medical negligence (in this case negligent coordination of information between units
of the same hospital) can be regarded as failings in public hospital services that deprive persons
of the access to medical care and thus a state can be found in violation of Article 2.
The last Section was devoted to a discussion of whether the vulnerable status of an
applicant influences the Court’s finding of the violation of positive obligations by a state. In
particularly, analysis was provided of cases where the patient had died in a psychiatric hospital,
where a detainee had suffered from inappropriate medical treatment, and where state authorities
had failed to provide necessary medical assistance to military servicemen.
It was found that the Court often reacts to vulnerability by deepening existing positive
obligations, in particular by transforming an obligation of care into an obligation of result. The
Court stressed on the necessity to pay particular attention to a patient’s vulnerable condition and
on his or her dependence on the state, and thus a state is obliged to account for his/her treatment.
The continuous failure of the medical personnel to provide such patients with appropriate care
and treatment amounts to a breach of the Convention. The conclusion was made that the Court
uses the vulnerability concept for expanding positive obligations in order to better protect
vulnerable groups.
46
CHAPTER 4: GENERAL CONCLUSION
The Court interprets the rights guaranteed by the Convention as imposing obligations on
states to not only refrain from committing violations, but also to take positive steps to secure
human rights. The concept of implied positive obligations is widely used by the Court in the area
of medical negligence. One of the research questions of the present study was whether the Court,
while addressing issues of the compliance of states with substantive obligation under the
Convention, applies a purely substantive approach or whether it integrates substantive arguments
into its traditional procedural approach.
Therefore, after the general introduction of the concept of implied positive obligations
in the case law, the second Chapter analysed the Court’s traditional procedural approach in
medical negligence cases. It was concluded that, in early judgements, the Court used to examine
alleged state violations arisen from medical negligence from the perspective of state compliance
with an ex post facto procedural positive obligation, which is regarded as the obligation to set up
an effective judicial system in order to establish the cause of a death of a patient and any liability
on the part of the medical practitioners concerned and as the obligation to grant an appropriate
redress to the victim. So it was seen that, although the Court included in positive obligations the
requirement for hospitals to have regulations for the protection of patients' lives, the assessment
was mostly directed on state compliance with the obligation to adopt the measures after the
medical negligence occurred.
The Court has developed procedural requirements for such measures, such as
promptness, effectiveness and fairness of a decision-making process. On the basis of an
examination of these requirements in the case law in the area of medical negligence, it was found
that the Court frequently evaluates the length of the procedure, the participation of the victim and
the accessibility of the outcome of the investigation to the victim. The Court does not engage
into reviewing the medical reports, as the Court has stressed that it does not possess the
necessary expertise to do so. The task of the Court is to define whether the examination of such
reports by the authorities was fair and just.
When analysing the Court’s case law with respect to the right to a remedy for medical
negligence, it was found that the recourse to criminal law, in case of unintentional infringement
of the right to life as a result of the medical error, is not mandatory, and that access to a civil
remedy will suffice for a state to comply with its obligations. It was also concluded that for the
Court in assessing the compliance of states with procedural obligations the decisive factor is not
the kind of remedy pursued by the applicant, but the effectiveness of such remedy and the
possibility that other remedies guaranteed by the domestic law for the kind of situation occurred
will be more effective. However, the Court has established that in case of gross medical
47
negligence or medical negligence committed towards a person, who is dependent on the state,
the state authorities are required to institute criminal proceedings.
After examining the case law, it was seen that if sufferings of the person, resulting from
naturally occurring illness, were exacerbated by treatment for which the authorities are
responsible, the Court finds a state in violation of Article 3. The Court also emphasised the
importance of providing access to information regarding potential risks to health and of the
obtaining informed consent from patients. The failure to do so can amount to a breach of Article
8.
Another research question inquired to the extent to which the Court imposes substantive
positive obligations in medical negligence cases. Therefore, the last Chapter showed the
development of the Court’s approach in examining state positive obligations arisen from medical
negligence towards the recognition of and more thorough examination of state substantive
obligations. Contrary to the early judgements in the area of medical negligence, where the Court
did not separate the examination of substantive and procedural aspects of positive obligations, in
later judgements, the Court started to assess the compliance of states with the substantive
obligation to put in place a legal and administrative framework, and further moved towards the
examination of mere medical negligence on part of medical personnel that could in particular
circumstances lead to findings against the state.
It stems from the previous case law that the Court rejected complaints in cases when
death had occurred as a result of clinical negligence, if the hospital had the required procedures
in place and doctors followed them as directed. However, when the case involved not only mere
medical negligence, but also a denial of the healthcare that the State had undertaken to make
available to citizens, the Court declared that a state was in violation of substantive obligations
regardless of the existing legislative and regulatory framework.
So, in these last judgements, while examining the state’s positive obligations under the
substantive limb of Article 2, the Court spoke about the structural failures of health services that,
solely or together with medical negligence, had led to the death of patients. However, the Court
did not recognise state responsibility arisen only from negligence on the part of a doctor. That
was before the Chamber judgement in the case Lopes de Sousa, where the Court found that the
lack of coordination between hospital departments demonstrated failings in public hospital
services, leading to the deprivation of applicant’s husband of the possibility of access to
appropriate emergency care, and thus constituted a violation of the substantive aspect of Article
2. Before the Court stated that the mere error of judgement on the part of the doctor or negligent
coordination among medical staff were not sufficient to find a state in the breach of Article 2.
So, it can be concluded that this judgement constitutes a departure from the established case law.
48
The case was referred to the Grand Chamber. The judgement will be decisive from the
perspective of whether the responsibility of the state for a violation of substantive obligations
can arise from a mere medical negligence resulted from negligent coordination between
departments of the same hospital. If to follow the Court’s logics from Lopes de Sousa, then any
negligence coordination between medical professionals can be seen as evidence of failings in the
public hospital service of a state. If so, the question arise, how should states fulfil implied ex ante
obligation in order to prevent themselves from the possible responsibility for negligence
coordination between medical professional, if the legal and regulatory framework is already in
place?
Also the paper has addressed the issues of the influence of the vulnerability concept on
the development of the Court’s approach to positive obligations in the area of medical
negligence, in particular whether the Court has used such concept for expanding positive
obligations by transforming an obligation of care into an obligation of result. The analysis was
provided on the basis of cases concerned the situations when the patient had died in psychiatric
hospital, when a detainee had suffered from inappropriate medical treatment, when state
authorities had fail to provide necessary medical assistance to military servicemen were
analysed.
It was concluded that the Court stresses the necessity to pay particular attention to
patient’s vulnerable condition and his or her dependence on the state. The failure of the medical
personnel to provide vulnerable persons with appropriate care and treatment amounts to a breach
of the Convention.
In sum, it cannot be said that in medical negligence cases the Court fully changed the
vector of examination of implied positive obligations from the procedural to the substantive. The
Court provides a separate, thorough assessment of both types of positive obligations. What has
definitely changed is the Court’s approach to evaluating the compliance of states with
substantive obligations. It seems that the Court has used the concept of implied positive
substantive obligations in medical negligence cases to hold states responsible for flaws in the
public healthcare system and even for individual errors on the part of medical professionals.
Whether such approach will be further developed will be clear after delivery of the Grand
Chamber’s judgement in the case of Lopes de Sousa Fernandes v. Portugal.
49
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52
ECtHR, 17 January 2008, Dodov v. Bulgaria, no. 59548/00.
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ECtHR, 2 June 2009, Codarcea v. Romania, no. 31675/04.
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53
ECtH, 30 June 2015, Altug and Others v Turkey, no. 32086/07.
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